An illustration of “heirs’ property.”



MacArthur Fellow Thomas W. Mitchell on harnessing the kairos moment to protect Black property and wealth in America.

I am embarrassed to say that when I first met the Black farmers of Halifax County, North Carolina, in 1998, I suspected that they were country bumpkins caught up in a legal system that was beyond their comprehension. They described losing their land in a series of legal proceedings that were so bizarre and patently unjust that I assumed the farmers were mistaken.

I asked them to mail copies of their legal documents to me at the University of Wisconsin, where I was preparing for a lofty career as a law professor. I expected it would take me a few minutes to review the documents and explain to these kind folks what was really going on.

However, when the manilla envelopes began arriving in the mail weeks later, I was shocked to discover that on the contrary, it was I who was unenlightened.

The documents illuminated a little-known legal loophole called partition law that speculators were using to dispossess tens of thousands of poor families across the U.S. of their property.

Black Farmers in a Field of their Own

Here’s how the scheme worked. If a property owner dies without a will and leaves at least two heirs, their heirs usually inherit undivided, fractional interests in the entire property. This is common in the U.S., where about one-third of white Americans and more than three-quarters of African Americans and Latinos die without a will. It is so common in many places throughout the U.S., that such property in these places is widely known as “heirs’ property.”

Percentage of Americans with a Will

Source: Marco Francesconi, Robert A. Pollak, and Domenico Tabasso, Unequal Bequests (Nat’l Bureau of Econ. Research, Working Paper No. 21692, 2015).

Here’s where things get really troubling: after a few generations, ownership of the property is often held by dozens or sometimes even hundreds of people. Several decades ago, real estate speculators sensed an opportunity. They began tracking down distant property owners. For rural properties, picture long-lost cousins who moved to the city generations ago. Speculators track down and pay one or more of these owners — and they only need to pick off one — a nominal fee to sign over their typically small fractional share of the property. Then, the speculator can demand that the entire property be sold. Typically, these sales are not widely publicized, with no bidder other than the speculator. The targeted families, usually land-rich but cash-poor, often get pennies on the dollar.

From Alabama to New York and Hawaii to Florida, poor families who had been living on the same land or in the same homes for generations would wake up one day to find they were trespassers on property their great-grandparents had paid for in full and farmed or called home for decades.

Those targeted and dispossessed were, more often than not, Black. Researchers estimate the value of generational wealth lost by Black property owners as a result of this predatory practice is in the tens of billions of dollars, with millions of acres dispossessed and thousands of homes lost.

What happened next is a lesson in the value of stubbornness, the strength of partnerships, and the power of leveraging the kairos moment — the moment of maximum opportunity.

To help vulnerable families, I built up a national externship program. Over seven years, 135 law students participated. They helped thousands of families. But we were always one step behind, racing to stop court proceedings and help families before it was too late. We recognized that to achieve impact at scale, we needed to change the rules.

Farmers chopping cotton on land near White Plains, Greene County, Georgia,
U.S., June 1941.

To Change the World, We Need to Change the Rules

At the time, changing the rules seemed a daunting challenge. The consensus opinion among lawyers was that the centuries-old loophole could not be reformed — not because it was fair, but because those most negatively impacted by it simply lacked sufficient political and economic power.

In the early 2000s, our first kairos moment arrived. An award-winning investigative report by the Associated Press detailing how African American families were losing their land got the attention of the American Bar Association. The American Bar Association then used its influence to convince the Uniform Law Commission to develop a model state partition act.

I served as the principal drafter of this model legislation called the Uniform Partition of Heirs Property Act that provides heirs’ property owners with a series of simple due process protections: notice, appraisal, the right of first refusal, and the right to have their property divided if feasible instead of being forcibly sold. If a court orders a property to be sold, our legislation requires the sale to occur on the open market to ensure owners receive market value.

I expected that it might take 50 years for partition law reform to gain any traction. And there were states, such as Alabama, Mississippi, and South Carolina, where no one thought there was any hope of partition reform until long after my law students and I would leave this earth. I was prepared, however, to travel the backwaters of the U.S. and dedicate my life to shining a spotlight on this abuse of the law.

Unfortunately, few funders had a similar time horizon or patience to support this work for more than a few years at a time. That mismatch took its toll. Funding for the externship ended after seven years. And funding for a Center for Minority Land and Community Security at Tuskegee University that I helped establish to focus on this issue ran out after five years. Similarly, year-round clinical programs that focused on heirs’ property at two law schools in the South also shut after three years when funding ran out. All of these programs were impactful and effective. But funders moved on.

Undeterred, I continued the work, fueled mostly by sleep deprivation.

Colleagues warned that my focus on service work — in state capitals and along country roads — in addition to my teaching and research obligations could undermine my career trajectory as a law professor.

Approximate Ownership of Farmland Relative to 1910, By Race

Source: The New Food Economy, “How USDA Distorted Data to Conceal Decades of Discrimination against Black Farmers,” June 2019.

An Awakening Softens the Soil

We experienced some small successes until a few years ago when our second kairos moment arrived. As awareness of systemic racism, massive racial wealth gaps, and the need to redress generations of exploitation have gained broader acceptance, state and federal lawmakers began returning my calls.

With my model legislation in hand, I was ready to leverage this moment. I worked at a breakneck pace with dozens of lawmakers to adapt and adopt my model legislation in states across the U.S. Other people I’ve collaborated with worked to insert language in the 2018 Farm Bill to incentivize states to adopt the legislation. To date, 18 states have approved my model legislation, including Alabama, Mississippi, and South Carolina. Another six states and the District of Columbia have introduced the legislation this year. And I am in discussions with the U.S. Department of Agriculture about what more it can do to support Black farmers and other disadvantaged farmers and landowners.

That over the course of two decades I’ve gone from focusing on what widely was considered a “backwater” issue to focusing on the issue of our time — how the U.S. legal system harms the Black community — demonstrates how fast the world can change. I even won a MacArthur Fellowship last year. But here’s the thing: fate is fickle.

As Melinda French Gates recently wrote in a opinion piece when she announced her US$ 1 billion commitment to support women’s empowerment in the U.S.: “Here’s what keeps me up at night: I imagine waking up one morning to find that the country has moved on. That the media has stopped reporting on systemic inequalities. That diversity remains something companies talk about instead of prioritizing. That all of this energy and attention has amounted to a temporary swell instead of a sea change.”

I’m haunted by the same fear.

The work I’ve accomplished thus far would have been impossible just 20 years ago. And it might be impossible again in another 20.

The lesson here for social investors of all stripes is that your “off the radar issue” may be tomorrow’s cause célèbre. Be patient. Be prepared. Be strategic. And leverage your kairos moment.

Thomas Wilson Mitchell

Thomas Wilson Mitchell is a scholar of property law, a noted legal reformer, and a 2020 recipient of the MacArthur Fellowship, commonly referred to as the “Genius Grant.” He works to develop and implement law reform measures and policy solutions to enhance property rights for Black and other historically marginalized Americans and to address the historic and unjust ways in which these Americans have been stripped of their property wealth. He is currently a professor at Texas A&M University School of Law and co-director of the Program in Real Estate and Community Development Law. He received his bachelor’s degree from Amherst College, a Juris Doctor degree from Howard University School of Law and a Master of Laws degree from the University of Wisconsin Law School.