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S.C. Statehouse
Report
Sunday, Aug. 13, 2006
VIEW: http://www.statehousereport.com/columns/06.0813.prop.htm
Heirs property
law provides more protection
By
Andy Brack
Publisher
SC Statehouse Report
 AUG.
13, 2006 - - The most unheralded new law from the 2006 legislation
affords better protection for people who own so-called "heirs
property," - - fractional shares of property in land
passed down from generation to generation.
A new law signed by Gov. Mark Sanford in May allows family
members to have a right of first refusal to buy the share
of a fellow family member' who wants to sell. Under existing
state law, land passed on without a will is owned by all of
the heirs of the property.
As highlighted in a recent engaging story in The
State, freed slaves came into possession of what was
thought to be worthless land in the waning days of the War
Between the States. But it often was passed on without wills.
In the generations since, heirs multiplied into the hundreds
for individual parcels of land, a lot which is along the coast
and has enormous value as people stream in to take advantage
of the state's slower-paced quality of life.
Old property laws have made it relatively easy for unscrupulous
developers to cajole just one heir to seek a buyout of his
or her share of the property. When that happened, court action
often followed to allow the individual to realize his or her
share. Unfortunately, other family members were left out in
the cold as the land was sold at sheriff's sales for pennies
on the dollar. Through the years, millions of acres of heirs
property have been lost by families that couldn't intervene.
Under the new South Carolina law pushed by S.C. Sens. Clementa
Pinckney (D-Jasper) and Robert Ford (D-Charleston), families
have a little more time. The new law says once a court action
has been filed to seek a sale, family members who don't want
the land sold outside the family have 10 days to let the courts
know they want more time.
After the court approves a price, which may be agreed to
by the family or set by an appraiser if there is disagreement,
family members who want to preserve the historical stake in
the property have 45 days to come up with the money to buy
out the family member who wants to sell.
In other words, the new law acts as a circuit breaker to
give the family more time to come up with money to keep the
property in the family.
"It's a positive first step," said Willie Heyward,
managing attorney for the Center for Heirs Property Preservation
in Charleston, who noted that the new law provides at least
some protection - - much better than the lack of protection
in the past. "At least now, they have some leverage."
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Still, the new law needs some more work.
First, the time span needs to be lengthened. More than 10
days is needed for families to identify and notify all potential
heirs of a possible sale. Through the years, many heirs have
moved out of state - - and may not even know they have a fractional
share in a piece of now-valuable real estate. There needs
to be more time for families to ensure all qualified heirs
are part of the process.
Also, families should have a little more time to come up
with the money. If a property along the coast is now worth
millions, it might be hard for family members to come up with
hundreds of thousands to buy out the fractional share of just
one member. The statute should be flexible enough to allow
courts to extend the time for families to come up with the
cash if they're making a good-faith effort to satisfy the
member who wants his or her share.
Next, the new law does nothing to shift the burden from the
family members who want a buyout to the family members who
want to keep the land - - and their family heritage - - intact.
One person still can force a sale. If South Carolina really
is a state about "family values," then a family's
wishes about its land should take precedence over that of
one member.
It would be better for the law to be upgraded to require
a certain percentage of family members - - say a third - -
to agree to a sale before it can move forward. This would
allow the family to make a decision based on its wishes as
a whole, instead of having to respond to one of 100 potential
heirs.
Send your ideas to Andy Brack, publisher
of S.C. Statehouse Report, at: brack@statehousereport.com.
Brack's book of commentary, Bugging
the Palmettos, is available for
$15.00. Click
here for more.
Recent commentary
8/13: The thing
about Joe ...
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