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The fight to hold onto family property in Virginia

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VPM News Focal Point
Kajsa Foskey and Parker Agelasto join Focal Point to discuss how people can protect their families’ land.

In the early 1900s, Black Americans owned 19 million acres of land—today that number has dwindled to three million acres. Land loss often occurs when a landowner dies without a will. And when there is confusion about unpaid real estate taxes, the land is at risk of being auctioned by local governments. We speak with Kajsa Foskey, who is fighting to protect family land and Parker Agelasto.


ANGIE MILES: In the early 1900s, Black Americans owned as many as 19 million acres of land, a number that has dwindled to just 3 million acres today. One driver of land loss is complications that occur when a landowner dies without a will. And in many cases, it is confusion over real estate taxes, that puts land in jeopardy of being auctioned by local governments. I'm joined now by Kajsa Foskey, who's an Economic Justice Coordinator at the Virginia Poverty Law Center, where she works on heirs' rights and she has a personal connection to this issue as she works to protect her family's land in rural Louisa County. Also, we have Parker Agelasto, who is the Executive Director of Capital Region Land Conservancy. Thank you both for being with us. We know that land forfeiture laws and heirs' property rights do pose some major challenges for many Virginians. In your experience, how significant are these issues, either of you?

KAJSA FOSKEY (Economic Justice Outreach Coordinator, VA Poverty Law Center): These issues are significant. I think so many people underestimate the amount of land that was acquired in the reconstruction era. And since then, we've seen land loss in the millions of acres. And a lot of that has to do with loss to forfeiture from property taxes, through complications and passing down the will and the title being clouded because there's not clear title and families don't have clear ownership of the land. And so I think the amount of land that has been lost, there is no solid number, because so much of this property is still unaccounted for. Currently, there's no bank of how much heirs property exists currently in the rural south. And so we don't have a super strong understanding of how deeply this issue has affected Black landowners across the rural south.

Parker, you want to weigh in?

PARKER AGELASTO (Executive Director, Capital Region Land Conservancy): I think exactly that there is not a good metric to know, we can look at some property records and say, well, it's if the ownership says, "et al", in the ownership record, that it might be Tenants in Common heirs' property where there's a number of family members that own it. But when you ask the question about like, what is the effect of it, a lot of it means that this capital, this asset, that is still the family's asset, is not being put to productive use. You cannot sell the timber on that property if you don't have clear title. You can't sell the property, if you don't have clear title, you can't technically lease it to a farmer or somebody else to generate income if you don't have clear title. And many times these properties have been in heirs' status for maybe 60, 70, 80, maybe 100 years, and you're talking about hundreds of descendants to try to come together to reach consensus on how to resolve that. And that can be a huge impact on people and their livelihood and then what's the use of these limited resources.

So people have a better understanding of how confusing it can get. So if the great grandmother has the land, passes it down, just through the law when she passes away, so maybe there are four children. And then if each of them has four children, well, now you have different layers, right of inheritance. And if one of her four children passes away, then all of their children become potential heirs. And then you have sort of lines that are not parallel. And then if you run out of descendants in one line, then it can go back up to another, it's like a big confusing ball of yarn, isn't it?

KAJSA FOSKEY: Yeah, most definitely. In the case of my family, our heirs' property was created when my great-great-grandfather passed. So that would be my grandfather's grandfather. He had lots of children. And so when he passed that land would have gone to his wife and or his many children. And since then, these are family members who are of my grandfather's generation. They've many of them have had children, have had even great, great-grandchildren. And so the list of heirs is unbelievably long and it almost feels impossible to actually build out a family tree that can stretch far enough to include horizontally the amount of heirs that could potentially be implicated in these heirs' property issues.

So and not to mention the challenges for those trying to collect the taxes and trying to find and notify everyone that the taxes are delinquent, or there might be a sale looming. Kajsa, how has this affected your family specifically, in Louisa County? And does that intersect with how you try to help others deal with their issues?

KAJSA FOSKEY: Yeah, so my family in Louisa County, my great great grandfather, and my great great grandmother, both came into the marriage with land. Some of that land was inherited post-Reconstruction, post-Emancipation. Almost immediately after Emancipation since the 1870s. So this land has been passed down for so long. And since then, when my great great-grandfather died without a will, and his wife was remaining, she actually did have a will and so his land was informally passed down to his heirs. In her land, she formally passed it down to one of her sons. But of course, eventually, her son had a will, and he passed that land down to his heirs. But eventually, as time goes on, not everyone passes without a will, unfortunately, and so some of our land has been lost due to a confusion over property taxes, and we received a notice back, I want to say this might have been 2012, or 2016. And they have 14 heirs listed on a notice for delinquent taxes owed to Louisa County. Nine of those heirs were no longer living, the remaining five would have been very young children, by the time the land became heirs' property, they might have had very little connection to the land, might have never actually physically seen the land.

And so, the land remaining in this state really does leave it vulnerable to a host of issues. And unfortunately, we have lost land as a result of heirs' property issues that just come from land being passed down informally, and not having clear title, not knowing who's responsible for paying taxes, not knowing where the tax notices are even showing up. That still remains a huge issue. And to this day, the land remains heirs' property. I have done such a deep dive into heirs' property issues. I've done such a deep dive into my family history, and even still, resolving it feels like such a heavy lift and feels like a huge mountain to climb. And so that informs a lot of my work when I try to educate about heirs' property issues and let families know what potential hurdles they might face when they're trying to resolve issues of their own within their own families.

Parker, does this sound familiar?

PARKER AGELASTO: It does, and part of the confusion is because you don't have an agreement amongst family members about how to manage the property. And who is going to lead and run the point as the liaison with the local government for paying the taxes or managing the property. When it comes to well, if we're going to sell the property, everybody wants their equal share of the sale proceeds, but when it comes to actually managing and the costs associated with maintaining and keeping that property, not everybody wants to share the cost. So it becomes an issue of trying to get in place some sort of a management agreement. And oftentimes what gets recommended for families when they're resolving heirs' property, to try to keep it in the family is to establish an LLC, create a corporation of the family, and all the family members shares then become part of that corporation and they can then change and prorate it based on how family members might want to be involved in the property. Or for those cousins that have never been to the property who have no attachment to the property and are interested in continuing a relationship to that property would give them an exit strategy that does not jeopardize the family ownership of the property.

What has happened often with heirs' property in that has also led to the loss of heirs' property. in other cases, isn't just who's paying the taxes. But if you have a cousin who's got a small fractional share, they could potentially sell their undivided interest to a third party who is not a family member. And that third party now has a voice in how the property is going to be managed, or potentially sold and forced into a partition, which is a court ordered procedure that divides up the land for all the heirs. And as you might know, it's it's better to have for economies of scale, one big farm, than 50 little farms. Sometimes the 50 little farms aren't even economically viable. So that becomes another issue in how to keep land in the family, and even with who's paying the taxes.

Let me just ask, philosophically speaking, neither of you has an issue with the fact that localities need to collect taxes, right, they need to pay for services and salaries. And so, philosophically, you're not saying that real estate taxes are a bad thing, is that correct?

PARKER AGELASTO: I personally think that real estate, that's the law, and if you own real estate, or if you own real property that is taxable, you pay your taxes. I do think, however, that there are instances where what is the assessment and what is the tax rate that is applied? That's subjective, that can be up to the locality to determine. And frankly, from my perspective, I'd love to see Virginia adopt a standard where you could have a little bit more of a homesteading, where the tax rate was different based on how long you've been on the land. You shouldn't have to lose your land because the tax rate changes or your assessment has changed, and you can no longer afford to pay the taxes.

So let's get to that because in speaking with people about this, I've heard complaints about over assessment, you know, 'there's nothing but a shack there, but suddenly, my property values gone up, which means my taxes have gone up, and I'm not even living there.' I've heard stories of people having to harvest all the timber to maintain the taxes when the land has been in the family for a long, long time. Localities do have to follow the Code of Virginia and how they handle the sales, waiting periods, for example, before an auction, safeguards for people with approvals through the courts, ways to redeem land, ways to appeal sales. But still, it does seem that counties have a lot of power, the localities have a wide range of discretion about what they do, and how they do it. And it impacts real people in their ownership. You want to say something about that, Kajsa?

KAJSA FOSKEY: A lot of my work in studying heirs' property, and a lot of the scholarship that I found, related to the solutions for heirs' property have really been at focusing on resolving the clear title issue, getting it in one person's name, getting everything back into good standing. And I think that a lot of the solutions that are around our property tax system, around addressing heirs' property issues don't always take into account the real lived experiences, and the historical context, that creates how Black families use and understand their land and care to manage their land in the future.

So fundamentally, I don't have a problem with property taxes. I don't think property taxes are inherently the issue. But I think what has happened is that our property laws have been created to really protect one type of property ownership. And in doing that, we have neglected a subset of communities in America that have used their properties differently, they have used their lands communally, right, so families who want to leave their land to their many heirs, now have to conform to a system where one person has to pay the taxes, or they have to come up with some informal agreement amongst themselves. And so there have been efforts, I think, to address some of the issues around tax...around tax assessments and tax collection.

There was a bill in the legislature last year that would have allowed families to have more time to pay back owed taxes, to get on payment plans. But what that also would have done, it would have allowed families to have one year to buy back their properties if they lost it to a tax sale. And in doing that, that was a tool really to help families have more time to come together, to pool money, to find other resources to be able to continue to protect their land. And I think that a lot of the solutions are going to have to really take into account that there has been this new form of property ownership that has informally existed in our ecosystem. And we now have to account for that and create some real protections that help those families who have been historically vulnerable to tax loss, exploitation, etc. really help them protect the assets that they have that can really help even propel them into further economic opportunities. I think land has been contrived as something that's supposed to be a wealth-generating asset and I think for many Black families, unfortunately, that hasn't been the case.

Laws certainly do change in the long-ago history of Virginia, people could just pay the taxes on property and then own it. There have been a number of people who have become wealthy by just paying attention to who was behind on their taxes and then paying that tax and then acquiring the land. That is no longer the law in Virginia. Some other things have changed, like the ease of partition developments for land or heirs. Right, Parker, can you speak about some of the changes you've seen in the way the law handles this?

PARKER AGELASTO: I think what you're referring to is called the Uniform Partition of Heirs Property. And that is a change that was enacted by the General Assembly of Virginia a few years ago. And it was something that was important. A Uniform Law is something that has been established by the Uniform Law Commission and it's a way to help address a universal problem, something that is nationwide. And Virginia became one of the first states in the South to really adopt this Uniform Partition of Heirs Property Act. And it's an important thing, because it now puts into law the process by which heirs' property can be resolved in a court. So if you can't get family members to necessarily come together, cooperatively in agreement, you still have the ability to go to the court. And they have the ability to say, well, we can either partition it and that example that I was giving of, let's say you have a property and it gets divided up 50 ways, you may not be able to even build a house on it, you can't really divide one house up 50 ways. And so the courts now have a system in place, how to resolve this, it takes into consideration those lived experiences and who would be prioritized above the rest. So if there's somebody living on the property, who's truly a residential steward, they get prioritized above the person who's not even a family member but bought in on an undivided interest.

And it helps to establish the process through which you come up with an agreed upon value for the land. You know, I might disagree with my brother about what's the value of mom and dad's property? Well, that gets exacerbated when you have a lot more people. And some people who are living in localities where land is worth very different amounts than what we experience in Virginia or in rural communities. And their perceptions are different. And so it allows to establish what the values would be, and then the process for family members to kind of buy out other family members at that rate. But again, it's about who can get a loan to then buy out their family members to try to even keep the property in ownership.

It is certainly a ball of yarn, right, that can get very complicated, and it's very frustrating and sometimes deeply painful for people to work on these issues. We're going to rely on the two of you to help us with a compilation of resources that we can share out on our website for individuals who really are looking for help may have limited or no resources and need answers. And you two, fortunately, are a wealth of knowledge and can help us to direct them to more information. So, thank you both for joining us for this discussion.

Links for additional resources:

Heir's Property Toolkit

Black Family Land Trust

USDA Fact Sheet

One Shared Story - Central VA nonprofit that helps highlight and preserve local Black history. They host genealogy workshops and engage in digital archiving and mapping.

Capital Region Land Conservancy

Farmland Access Legal Toolkit


Angie Miles, Host/Producer, anchors and hosts VPM News Focal Point and special broadcasts.
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