Inequity in Equity: The Tragedy of Tenancy in Common for Heirs' Property Owners Facing Partition in Equity

83 Pages Posted: 26 Aug 2009 Last revised: 30 Sep 2009

Date Written: August 25, 2009

Abstract

This article considers the impact of the default intestacy estate of tenancy in common on African-American heirs' property. This piece considers the evolution of the heirs' property conundrum in the Lowcountry of South Carolina - the birthplace of the dream of African-American land ownership - and explores the implications of this form of property ownership in tenants in common facing partition in courts of equity, particularly in developing Sunbelt communities. Comprehensive property law reform is crtically needed. I propose a new legal framework to better regulate the externalities that plague the commons of heirs' property and achieve more equitable results in actions to partition heirs' property. Specifically, courts of equity should take affirmative steps to better manage the economics of partition actions so that external costs are appropriately assessed and valuations accurately compensate partitioning co-tenants who hold fractionated interests. These steps would ameliorate the distorted economics that make partition actions so attractive to developers who benefit from the exploitation of heirs' property. In addition, I consider a recent line of state supreme court cases that utilized alternative partition remedies to preserve sentimental and historic family homesteads. These cases offer a sound legal theory that can stand and should be applied in the heirs' property context. Finally, I offer concrete legislative reform proposals that will enable legislators and judges to provide more equitable consideration of partition actions, thereby preserving the historic land legacy of African-Americans.

Suggested Citation

Rivers James, Faith, Inequity in Equity: The Tragedy of Tenancy in Common for Heirs' Property Owners Facing Partition in Equity (August 25, 2009). Temple Political & Civil Rights Law Review, Vol. 17, No. 1, 2007-2008, Elon University Law Legal Studies Research Paper No. 2009-11, Available at SSRN: https://ssrn.com/abstract=1461639

Faith Rivers James (Contact Author)

Elon University School of Law ( email )

201 N. Greene Street
Greensboro, NC 27401
United States
336-279-9332 (Phone)

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