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Reforming Property Law to Address Devastating Land Loss

62 Pages Posted: 30 Oct 2014 Last revised: 2 Dec 2014

Thomas W. Mitchell

Texas A&M University School of Law

Date Written: October 29, 2014

Abstract

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real estate wealth as a result of partition sales, partition sales also have negatively impacted a wide range of other property owners. Some scholars have estimated that Hispanics in New Mexico lost nearly two millions acres of property in that state alone soon after the end of the Mexican-American War as a result of the manner in which land claims were settled pursuant to the Treaty of Guadalupe Hidalgo. Low- to moderate- income and poor white property owners in places like Appalachia have indicated to researchers that they feel at risk of losing their property as a result of partition sales. Though partition sales of tenancy-in-common property heretofore has been identified as a phenomenon impacting exclusively rural landowners, Hurricane Katrina revealed that there are a number of vulnerable tenancy-in-common property owners in urban cities and municipalities. There are even a surprising number of middle class, white property owners who own tenancy-in-common property under the default rules in some places in this country such as in Maine.

This Article, the lead article for this issue of the Alabama Law Review, reviews and analyzes the Uniform Partition of Heirs Property Act (UPHPA), a uniform act that represents the most significant reform to partition law in this country in modern times. I served as the Reporter, the person charged with principal responsibility for drafting a uniform act promulgated by the National Conference of Commissioners on Uniform State Laws, for the UPHPA. The Article summarizes those aspects of partition law that have resulted in thousands of property owners losing millions of acres of property and the real estate wealth associated with such property. The Article also provides an analysis of key sections of the UPHPA, and this analysis makes clear that the UPHPA represents a very comprehensive and innovative reform to what heretofore had long been perceived to be the intractable problem of tenancy-in-common land loss. For example, the drafters of the UPHPA drew in part on international comparative law in drafting certain sections of the UPHPA, including by drawing on the law governing exit of common ownership in countries such as Australia, Canada, England, and Scotland. Moreover, the Council of State Governments selected the UPHPA as one of thirty-five newly enacted statutes or uniform acts for inclusion in its 2013 Suggested State Legislation publication (from hundreds of submissions by state officials from across the country) to encourage states to consider it as a model. The UPHPA has been enacted into law in four states, it was introduced for consideration in four other jurisdictions in 2014, and a number of states are on the cusp of introducing it for consideration in 2015.

Keywords: African-American, attorneys, black, civil procedure, civil rights, class, comparative, courts, entity, family, international, land, Latino, law and economics, legislation, minorities, model laws, ownership, poverty, property, race, real estate, reform, remedies, rural, state, statute, urban, wealth

JEL Classification: K41, K360, K41, Q15, 013, O1, D63, I390

Suggested Citation

Mitchell, Thomas W., Reforming Property Law to Address Devastating Land Loss (October 29, 2014). 66 Alabama Law Review 1 (2014) (lead article); Univ. of Wisconsin Legal Studies Research Paper No. 1329. Available at SSRN: https://ssrn.com/abstract=2516275

Thomas W. Mitchell (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States
(817) 212-3935 (Phone)

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