For members of many families, the family property will be the source of fond lifetime memories that they would like to see subsequent generations have the opportunity to experience. For others, the property will be symbolic of a time in their lives they hope to forget. While some family properties will be enjoyed by multiple generations over decades, others will be sold for a multitude of individual reasons, but most commonly because subsequent generations don’t share the founders’ emotional attachment to the property, or because the members of a subsequent generation don’t get along with each other, can’t agree on how to manage the property, want to create new memories and traditions elsewhere, or simply can’t afford to keep the property
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SFLR exists to create a sustainable system of support for African American forest owners that significantly increases the value of African American owned forests, land retention, and asset development for Black families in the U.S. South.
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Real property passed to subsequent generations via intestate succession (i.e., without a will) is termed a tenancy-in-common, or more colloquially, “heirs’ property.” Property may also be classed as heirs’ property via an intentional simple will that divides real estate assets equally among descendants. With this kind of property ownership, co-heirs hold fractional interests in property that is not physically divided. As such, heirs’ property represents a form of collective ownership...
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Heirs Property is a common term for property that is inherited from a deceased family member. However, the term eludes to property that is given or owned by more than one person. Under Heirs Property, numerous siblings, even cousins can own a piece of land and whatever is attached to it. Usually, it is created by either a family member willing the property equally to the descendants, or where someone dies without a will.

When numerous people own a single property, some things are confused.

• Every owner of land has some rights to the land, such as the right to possess the property. Meaning, an owner can use or live in any part of a property. Even if an owner only owns 50% or 25% or 5%, he or she can use 100% of the property. This matter becomes confusing when co-owners of the heir property want to live in the property. If only one house is on the land and more than one owner wants to live in the house, everyone has the right to live there and none of the owners can prevent another. A locked door must be unlocked, which may lead to confrontation.
• One co-owner cannot charge rent of the heirs property against another co-owner. Charging rent to an owner is not proper, it is like a husband and wife buy a house, but then they have to pay each other rent to stay in their marital home.
• Just like other ownerships of land, an owner of heirs property can sell his or her interest without another's permission. If a family member wants to be bought out of their interest in the property, they usually go to other co-owners. A brother who owns 25%, would likely be happy to own a sibling's 25%, which would make him an owner of 50% of the heirs property. Again, this situation may become confrontational because other owners may not have the money to buy out a co-owner and are against a 3rd (non-family) party owning a part of the heirs property.
• Who pays the taxes? All co-owners, in a fair world, would pay their taxes without any issues. However, when some co-owners do not pay their taxes, other co-owners are forced to pay the other's portion of taxes. Failure to pay 100% taxes will lead to a tax lien being placed on the property, which then could allow the government to sell the heirs property to receive the past taxes. Here, co-owners can sue one another for the amount of unpaid taxes, but this runs the risk of creating bad blood among co-owners.
• Who gets the profit (e.g. rent)? Even if one co-owner is managing the heirs property and collecting rent, the rent must be split among all co-owners according to their percentage of interest in the heirs property.

In light of the above, heirs property can be saved or destroyed.

A land trust is a way to save property from the confusions stated above. A trust is an agreement between co-owners, where all owners of the heirs property give their interest to the trust and rely on the trust to make decisions for them. This arrangement would place the trust on the deed as being the sole owner, which removes the confusion associated with having more than one owner of a given property. A trust usually has one or two "trustees" who's duty is to work for the benefit of the co-owners, to pay taxes, and to maintain the property.

Heirs property can be destroyed by the court where co-owners can turn to the court for a Partition action that would either divide the physical property (partition in kind) among the co-owners, or that would result to selling the property where a fair division of property cannot be realized (partition in sale).

If you have any questions or concerns about creating a land trust or assistance in heirs property matters, you should speak with a local attorney.

Disclaimer: This information is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. This information should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

The Black Family Land Trust, Inc. (BFLT) incorporated in 2004 and based in North Carolina, is one of the nation's only conservation land trust dedicated to the preservation and protection of African-American and other historically underserved landowners assets. The BFLT utilizes the core principles of land conservation and land-based community economic development to achieve our goals. We measurably improve the quality of life for landowners, by providing families with the tools necessary to make informed, proactive decisions regarding their land and its use. The BFLT works primarily in the Southeastern United States, our programs are intergenerational in their design. We honor the legacy of those stewards of the land that came before us and have faith in those stewards of the land that will come after us.
 Learn More @ bflt.org/

Divorced couples may be familiar with how the courts divide a house or other real estate. In North Carolina, an "equitable distribution" proceeding can determine how the real estate will be divided, if spouses can't agree. But what can non-married co-owners do when they are no longer happy owning property together and can't resolve the situation by agreement? The law provides an answer: partition.

North Carolina, like other jurisdictions, allows a co-owner of real estate to ask the court for a partition of the land. In a partition proceeding, the court can divide the land in one of two ways – either by actually dividing the land itself (a partition "in kind") or by selling the land and dividing the proceeds. A partition in kind may be appropriate where, for example, several children inherit a large family farm from their parent, and each child wants to solely own a piece of the farm. In such a case, the court can appoint impartial "commissioners" to fairly divide the property, accounting for the fact that some portions of the property may be more valuable than others. On the other hand, where an unmarried couple buys a typical suburban house together, it is probably infeasible to literally split the house if the couple decides to end their cohabitation. In that case, a partition sale would be appropriate.

While partition has been available in North Carolina for many years, the General Assembly recently passed Senate Bill 729, an act to update the partition laws. The new laws take effect on October 1, 2020. While many of the changes in the law (including the creation of a new Chapter 46A in the General Statutes) are technical in nature and will be of greatest interest to attorneys who handle real estate disputes, some changes are important. For instance:

• The new law changes how attorney fees can be awarded in partition cases. Whereas courts currently have general discretion on whether to order the payment of some or all of a party's attorney fees in a partition case, the new law provides additional guidance. It states that, generally, a court must allocate among co-owners, according to their interest in the property, any attorney fees expended "for the common benefit of all" co-owners. Accordingly, if multiple co-owners are benefitted by the partition but only one of the owners spent money to hire an attorney to pursue the case, the "free riders" should have to pay their share of the legal expenses. The new law also provides some more detailed rules about disputes relating only to "the method of partition or the division of the proceeds."


• The new law also creates a right for a co-owner to seek "contribution" (financial compensation) from other owners for paying "carrying costs" for the property – specifically, property taxes, homeowners' insurance, repair costs, loan payments or other "actual costs of preserving the value of" the land.

While Senate Bill 729 does not dramatically change the law of partitioning property, it contains some notable tweaks. Co-owners of property who may need a partition should consult a lawyer familiar with the current state of the law – and should evaluate whether it is best to file a partition case before or after the new law takes effect on October 1. Dissatisfied co-owners should also consider hiring an attorney to assist with negotiations before heading to court. While partition proceedings are sometimes necessary to resolve disputes, substantial expense can often be saved by negotiating a reasonable buy-out of a co-owner's interests in the property. Likewise, in situations where non-married parties (like business partners or unmarried couples) voluntarily take co-ownership of property together, they should consider consulting with an attorney about a "co-tenancy agreement" or other contract that will provide an agreed-upon buy-out mechanism in the event of a future dispute.

Disclaimer: This information is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. This information should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.