What happened to what is often colloquially called “Black land”? The decline is a byproduct of loopholes and discriminatory practices within the legal system that facilitated the undervaluing and acquisition of Black-owned land — which legal scholar Anna Stolley Perksy says is “the worst problem you’ve never heard of.”5 At the heart of the issue lies the manipulation of state inheritance laws, particularly in the South, and their problematic application to “heirs’ property,” perpetuating a cycle of dispossession. Heirs’ property is family-owned land that has been passed down through generations without a clear legal record, typically because there is no will or estate plan.6
Black Farmers in America
1900–2022
Imagine your grandparents, North Carolina farmers, died without a will. By inheritance law, their 100-acre farm passed equally to your mother and her brothers, then to you, your siblings, and your cousins. Now, you inherit just five acres, tangled with your uncles’, cousins’, and siblings’ multi-acre plots. Selling your portion is tricky. Courts often frown on splitting land. So, wanting out, you trigger a forced sale: the whole farm is auctioned off, with the profits divided by ownership. Speculators jump in, pushing for auction, and the land is auctioned off for much less than its market value. Your family, scattered and with limited financial resources, can’t compete. In such scenarios, co-owners find themselves displaced from their ancestral land with only a small compensation.
Another factor fueling forced sales is the so-called “tragedy of the commons.” With ownership fragmented in many Black farmsteads, who invests in upkeep? Fixing a fence benefits each individual owner, but oftentimes only one owner shoulders the cost. Because of inheritance law, there is no available enforcement action, so the incentive is to wait for another owner to help maintain the property. Sometimes, even if one person does want to take on the maintenance burden, they cannot act without the full agreement of all owners. Similarly, clouded titles often bar access to government grants for improvements and are barred from protection from foreclosure. Courts, seeing neglected land, become even more keen on forced sales.
Historically, systemic barriers have disproportionately hampered Black farmers’ ability to retain land ownership. These barriers included limitations on legal representation, discriminatory access to government programs, and the very real distrust Black communities often held toward local legal and financial institutions. For example, a 1997 study revealed that Black farmers faced prejudice in the application process for a large 1961 USDA loan program, a program that significantly benefited white farmers.7
This issue isn’t just historical. A 2017 study, further validated that same year, used computer simulations and tax authority data to identify rural property in the South likely to be heirs’ property. They found heirs’ property was prevalent in many Southern counties, ranging from less than 1% to more than 15% of all properties. And these parcels were clustered in “highly vulnerable areas that already have poor housing conditions and infrastructure, showing that heirs’ property adds another layer of complexity to poverty.”8
Heirs’ property also isn’t just a rural problem. The PEW Charitable Trust estimates 2% of all U.S. residential properties fall into this category.9 The tangled ownership that comes from this heirs’ property phenomenon meant 20,000 Hurricane Katrina victims couldn’t access government aid due to unclear land titles.10 It is also prevalent for many Native lands. Communal lands, once divided into individual lots by law, have further fractured through inheritance, mirroring the plight of Black farm families. The result? Tiny property parcels, weak incentives to invest, and the lure of a quick, albeit painful, sale.
Despite this tragic history, there is still time and economic incentive to set some of the inequities right. In the South alone, billions of dollars in land — about $30 billion to be precise — still hang in the balance. Combatting this perpetrator of the racial wealth gap requires a multi-prong attack. First, advocacy. This issue, vast and impactful, remains relatively unknown. Lawmakers and the public need to know the facts.
Second, policy. Financial support should be established to assist heirs in resolving property title issues, saving land steeped in family history and legacy. Simplifying access to USDA farm loans and services could enable heirs to avail themselves of critical agricultural programs. Equitable access to agricultural funding should be ensured, along with the establishment of dedicated offices to provide education and outreach on heirs' property. Additionally, legal aid organizations must be supported to offer specialized assistance and mediation services. Possible pro bono efforts by estates and trust lawyers at major firms could also make a big difference. The implementation of the Uniform Partition of Heirs’ Property Act by states could protect families from forced land sales (already accepted by 17 states). A federal law, not a state-by-state patchwork, would be an even more effective remedy for the situation. Perhaps, too, payments and additional support for minority farmers and former farmers who lost land to these sales would address past injustices and encourage a thriving domestic agricultural community — crucial in today’s volatile food supply chains. These reforms would collectively advance a more equitable wealth distribution.11, 12, 13
Fighting economic injustice means confronting the stark reality of America’s racial wealth gap, as again reinforced with the findings of the SCF in 2022. Black Americans are disproportionately low- to moderate income, burdened by a legacy of land loss that erodes the economic foundation on which wealth is built. Heirs’ property rules, a silent enemy hidden in plain sight, have fueled this devastating decline. Reversing this trend requires comprehensive reform, including enhanced legal support, equitable access to agricultural programs, and the implementation of laws that safeguard family land ownership. Through concerted effort and targeted policy, we can begin to mend the fabric of economic disparity and pave the way for a more just and prosperous future for all Americans.
