Restoring Hope for Heirs Property Owners: The Uniform Partition of Heirs Property Act

7 Pages Posted: 1 Dec 2016 Last revised: 13 Jan 2017

Thomas W. Mitchell

Texas A&M University School of Law

Date Written: November 1, 2016

Abstract

This Article provides a summary of the legal problems a diverse group of common property owners have experienced with the law of partition as that law applies to tenancy-in-common properties. Many of these property owners refer to their ownership as heirs property, which is attributable to the fact that most of the fractional interests in such property are transferred by intestacy. A large number of heirs property owners have lost their property over the course of the past several decades as a result of courts that have ordered forced-partition sales of their property. The Article further provides an overview of the Uniform Partition of Heirs Property Act (UPHPA), a uniform act promulgated by the Uniform Law Commission in 2010 and approved by the American Bar Association for consideration by the states. The UPHPA represents the most significant reform of partition law in modern times and is designed to make heirs property ownership more secure and to better preserve the real estate wealth of heirs property owners in those instances in which a court does order a partition sale. The Article also provides an overview of the enactment record noting that the UPHPA has now been enacted into law by eight states -- in many different regions. This solid enactment record is quite surprising given that those most negatively impacted by the extant partition law have been poor and disadvantaged property owners, many of whom have been racial and ethnic minorities. The Article details the background of South Carolina's enactment in particular, in part because South Carolina has been considered for several decades to be ground zero for partition action abuses and because it was widely considered to be one of the states in which legislators would most fervently resist any effort to reform partition law. Finally, the Article identifies several additional state legislatures that may consider the UPHPA in the near future, including legislatures in Mississippi, New Mexico, Tennessee, Texas, and West Virginia.

Keywords: common property, property, partition, reform, intestacy, real estate, forced sale

Suggested Citation

Mitchell, Thomas W., Restoring Hope for Heirs Property Owners: The Uniform Partition of Heirs Property Act (November 1, 2016). State & Local Law News, Fall 2016, at 6.; Texas A&M University School of Law Legal Studies Research Paper No. 17-04. Available at SSRN: https://ssrn.com/abstract=2877452

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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