Article on Improving the Uniform Partition of Heirs Property Act

Rishi Batra recently published an Article entitled, Improving the Uniform Partition of Heirs Property Act, 24 Geo. Mason L. Rev. 743 (2017). Provided below is an abstract of the Article:

[T]he Uniform Law Commission has recently promulgated the Uniform Partition of Heirs Property Act (hereinafter the “Uniform Act”) which attempts to address some of the issues caused by partition of heirs property. This act encourages a new way of partitioning the land in partition actions, and also preserves land value if partition sales do happen. States are starting to enact legislation based on the Uniform Act, which is a positive development.

However, the Uniform Act leaves other problems with heirs property partition unaddressed. This paper proposes three additional reforms that will make the act more robust in addressing the ills of partition: a change to how plaintiffs’ legal fees are paid by allowing those that object to the sale to avoid having the value of their land reduced, an improved notice provision to require more diligence in finding missing owners, and a mandatory mediation provision to address the root cause of some partition actions.

This paper proceeds in five parts. Part I discusses the problems with heirs property generally, including how it is formed, how it restricts access to resources, and how it is a major cause of land loss in minority communities. Part II discusses the mechanisms of heirs property partition specifically, and how heirs property actions are conducted. Part III explains why partition results in the loss of both economic and non-economic land value due to: the loss of land value at auction, the exploitation of partition sales by investors, the government-forced sale of ancestral homeland, the lack of notice to all owners, and the loss of value through attorney’s fees from the proceeds of the sale. Part IV describes how the Uniform Partition of Heirs Property Act does much to address some of these issues by requiring partition by allotment instead of by sale or in kind, by encouraging partition in kind over partition by sale, and by ensuring that if a sale remedy is sought, it proceeds in a way that ensures fair market value. Part V proposes three additional reforms, as mentioned above: a change to the payment of petitioner legal fees, an improved notice provision, and a mandatory mediation provision. A brief conclusion follows which suggests that heirs property partition is a symptom of the larger problem of heirs property more generally, one that needs to be addressed so we do not have the tragedy of Johnny Rivers reoccur for future generations.