"The Loss in My Bones": Protecting African American Heirs' Property with the Public Use Doctrine
2005; Routledge; Volume: 14; Issue: 1 Linguagem: Inglês
ISSN
1065-8254
Autores Tópico(s)Property Rights and Legal Doctrine
ResumoINTRODUCTION The Spanish moss swayed gently in the ancient live oaks, and the pungent smell ofthe salt marsh rolled in with the tide as Johnny Rivers sat on the steps of his home, reminiscing. 'Never wanted to be anywhere else ___ I thought I would die here,'1 he says of the land he lived on for sixty-nine years. Patriarch of a family of twentyseven children, grandchildren, and great-grandchildren, Johnny Rivers was born on this seventeen acre tract on Clouter Creek near the Cainhoy Peninsula of Charleston, South Carolina.2 His father, Hector Rivers, son of a former slave, acquired the land in 1888, and Rivers family members have been born, reared, and buried on it ever since.3 Unfortunately, despite never having missed a tax payment, on September 27, 2001, twenty-five members ofthe Rivers family were evicted in the largest eviction carried out by the Berkeley County Sheriffs Department in at least the last nine years.4 The court ordered the Rivers family to accept an offer of $910,000 from an investor who then put the land back on the market eight months later for three million dollars.5 Had the judge permitted the Rivers family to sell on the open market rather than convey their land to the only buyer who ever had the opportunity to make an offer, perhaps Hector Rivers' s heirs could have reaped the full value of their land.6 Johnny Rivers, who shared title to the land with more than thirty family members scattered as far as New York, Florida, and Georgia,7 could officially claim only 3.515 percent of the proceeds after attorneys' fees.8 ? feel the loss in my bones,'9 he said. ? feel like part of my body is gone, but Tm stiU living.'10 Today, that seventeen acre tract has been subdivided into Pinefield Plantation.11 A recent search of properties for sale in the new subdivision turned up a five thousand square foot mansion on a .3 acre lot with a deep water dock selling for 2.5 million dollars.12 A second property included a .29 acre tract, a 4,900 square foot house, and a deep water dock available for just over two milUon dollars.13 Johnny Rivers' s story is being repeated all over the South.14 Berkeley County!, South Carolina,] alone, more than 1,300 properties involving more than 17,000 acres are listed on tax rolls as belonging to the 'heirs of . . .'15 Because he shared title to the land with family members scattered across the country, many of whom had never even seen the land, Johnny Rivers had no legal recourse when some of those famuy members decided to sell the property. Under the current property law system, families who have lived on the same land for generations have little protection when developers wish to take advantage of their fractured, problematic titles by purchasing an interest in the land at below market value.16 In order to ensure that these famiHes receive a fair price for their land if they are forced to sell, the statutory system should be revised. James Madison stated: Government is instituted to protect property of every sort .... This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.11 Thousands of African American farmers in the Southeast lack record title to their land and are unable to enjoy fully the benefits of land ownership.18 Although the families have lived on the land for generations and pay the property taxes, they risk losing their property to developers who can afford to buy them out at court-ordered auctions. As the price of desirable coastal property has skyrocketed over the last decade, developers have become adept at finding fractured titles, purchasing a family member's interest in the land for a small price, and going into court to force division of the land.19 Because it is impracticable to divide the land physically among the many title holders, courts most often order a partition sale - usually an auction - and the land is sold to the highest bidder, generally at below-market value. …
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