Teaching Social Justice in the Property Curriculum

Written by Kathleen A. Bergin

It’s the end of summer, which means that most of us are turning our attention to class prep.  For me there’s plenty left to do, but I’m glad for the opportunity to connect with the good folks at SALT as a guest blogger this month.  Thanks for the invitation!

It’s exciting to be part of a community that shares a mission of “enhancing social justice within the curriculum.”  This obviously brings to mind the typical “law and . . .” courses that tackle issues of social justice head-on, courses like Race and the Law, Women and the Law, Sexuality and the Law, etc., or the genre’s more “radical offspring,” as I once heard someone describe it, Critical Race Theory.  But those of us who teach these classes also know there’s plenty of opportunity to address social justice issues in the core curriculum, where questions about fairness, equality, and subordination, are too often brushed aside.

Take the first year Property course, for example.  Most Property Profs cover the circumstances under which courts are able to force the sale of real property.  In July, the National Conference of Commissioners on Uniform State Laws approved the Uniform Partition of Heirs Property Act (UPHPA), which places conditions on a court’s ability to force a sale when multiple owners share an interest in the land.  These sales typically occur when the owners disagree on how to use the land, and there’s no practicable way to partition the land into functional plots.  The only way to resolve the dispute, conventional jurisprudence says, is to sell the land and distribute the proceeds proportionally to each owner according to their respective share.

I’m guessing most of us who own real property do so as sole owners, or as joint owners with one partner or spouse. But it’s not uncommon in rural communities for an entire generation of family members to share an interest in land.  Many African-American families in the rural South, for example, inherited property that an ancestor purchased decades ago, or perhaps more than a century ago as a freed slave.  If the original purchaser died without a will, the property likely got handed down in equal shares to the members of subsequent generations.  Eventually, hundreds of distant relatives who’ve never met could end up with an interest in a tract of land they’ve never seen or heard of.

So what’s the social justice angle?

Consider how the forced sale of “heirs’ property” as it’s called, divests the common owners of their land-based wealth.  Let’s say a developer has eyes on property in Louisiana to build a beach front resort. The developer locates a distant heir in New York (who isn’t committed to the land one way or the other), and purchases her fractional interest. The developer now owns a portion of the land in common with the remaining heirs.  If the other heirs refuse to sell (perhaps some of them built homes there, or spend summer there with the family), the developer can petition the court to force a sale.  When the fractional owners can’t afford to purchase the property as a whole, the developer moves in to purchase the land outright, more often than not, at a rock-bottom price.

These tactics have contributed to the sharp decline in land ownership among African-American communities.  Experts estimate that while African-Americans owned 19 million acres of land in 1910, by 1997, that number decreased to 1.5 million.  The UPHPA protects the fair market value of heirs’ property, and requires courts to balance the property’s ancestral value against traditional economic considerations before ordering a forced sale. For the communities most affected by these sales, this is a significant development.  It’s also one that gives us who teach Property, Wills and related courses an opportunity to put social justice issues right where they belong – at the center of the core law school curriculum.

Thanks to Penny Andrews (Valparaiso) for brining this to my attention, and to Thomas Mitchell (Wisconsin), who I understand is responsible for the original draft of the UPHPA.

– Kathleen Bergin

crosspost: Faculty Lounge