UNIFORM LAWS UPDATE

Successes and Future Prospects for the Uniform Partition of Heirs Property Act

Uniform Laws Update provides information on uniform and model state laws in development as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.

Uniform Laws Update Co-Editor: Jane Sternecky, Legislative Counsel, Uniform Law Commission, Chicago, IL

The Uniform Partition of Heirs Property Act (UPHPA), approved by the Uniform Law Commission (ULC) in 2010, has been passed in 22 states, the District of Columbia, and the US Virgin Islands. Over half of the US population is covered by the UPHPA, which gives owners of heirs’ property substantive and procedural protections in a partition action. “Heirs property” consists of property held by tenants in common, a minimum percentage of which are relatives who have not entered into an express agreement regulating partition of the property. The UPHPA protections include mandatory notice to heirs, posting a sign on the property if any heirs are unlocatable, an independent appraisal, a right for the heirs who did not request partition by sale to buy out the heirs who filed for partition, an enhanced preference for partition in kind, and an open-market sale procedure to ensure the highest possible return if the court orders a partition sale. The procedures established by the UPHPA are designed to allow owners of heirs’ property to keep their property within the family whenever possible and to ensure that they receive fair market value for their asset when sale is necessary.

The UPHPA’s most recent enactments include Arizona in 2024, Washington state and the District of Columbia in 2023, Maryland and Utah in 2022, and California in 2021. Additionally, as of press time, versions of the UPHPA are currently under consideration in the legislatures of Kansas, Massachusetts, Michigan, New Jersey, and North Carolina.

Notably, Maryland, Virginia, California, and the District of Columbia expanded the UPHPA to apply to all partition actions, regardless of whether the property is “heirs property” as defined in the uniform act. This expansion is a testament to the efficacy of the court procedures established by the UPHPA, and evidence of these states’ dedication to ensuring that partition can no longer be used as a tool for property developers to acquire any cotenant-owned property for pennies on the dollar.

The UPHPA’s widespread incorporation into United States’ property law would not have been feasible without the assistance of a network of heirs’ property organizations. The drafting committee for the UPHPA included observers from the Land Loss Prevention Project, the Heirs’ Property Law Center, the Heirs’ Property Retention Coalition, and other key organizations focused on protecting the rights of these vulnerable landowners. Many of these organizations have supported the ULC’s enactment efforts through legislative advocacy and by sharing the stories of heirs’ property owners who were harmed by their states’ lack of protection. These organizations have helped the ULC to demonstrate the scale of the problem of land loss through abusive partition actions involving heirs’ property, both nationally and at the level of individual states and communities.

Additionally, news organizations and the real property bar have played a key role in the UPHPA’s success, particularly in New York. In March 2019, a New York regional television news channel, NY1, produced and published an extensively researched piece that highlighted heirs’ property issues in Brooklyn and Queens. The NY1 piece brought attention to the plight of two property owners who were forced out of their homes by real estate speculators. With the assistance of the New York City Bar Association’s advocacy team, New York’s legislature took quick action to pass the UPHPA, closing the loophole that allowed heirs’ property to be acquired for far less than market value.

Another key component of the UPHPA’s success is the 2018 federal Farm Bill, which modified certain United States Department of Agriculture (USDA) programs. One of those programs creates a path for owners of heirs’ property to obtain a loan to resolve outstanding issues with title, while the second key provision of the Farm Bill allows heirs’ property farm owners to obtain a farm number, a necessary prerequisite for participating in USDA programs, even when they do not have clear title. Through cooperative federalism, Congress created this additional incentive for states to pass the UPHPA and gained the support of state farm bureaus in several states.

An Iowa Supreme Court decision on an heirs’ property issue served as a catalyst for the UPHPA’s passage in that state. In Newhall v. Roll, 888 N.W.2d 636 (Iowa 2016), the court determined that Iowa’s then-existing partition law required partition in kind only if it was “equitable and practicable.” In this case, a family farm owned by a brother and sister was ordered sold after the brother filed for partition, even though the sister requested partition in kind and was willing to pay her brother for some of the land in order to ensure the division was equitable.

After the Newhall case was decided, Iowa farmers grew increasingly concerned about the lack of protection provided to family farms under the state’s existing partition statute. This decision laid the groundwork for a successful introduction of the UPHPA, which Iowa passed in 2018.

A study by the USDA’s Forest Service estimates that there are at least 168,000 parcels of heirs’ property in the 29 states that have not yet enacted the UPHPA. Without the additional protections offered by the UPHPA, these heirs’ property owners remain vulnerable to losing their property through forced sales. During the years to come, the ULC will continue to advocate for this important piece of uniform legislation in the remaining state legislatures.