While debate over the farm bill has mostly centered on food assistance programs, an under-the-radar provision in the omnibus legislation could greatly assist farmers and ranchers who operate on heirs’ property—that is, inherited land that lacks clear title. The provision is particularly important to black farmers, because an estimated 40 percent of African-American owned land is located on heirs’ property and as a result, those farmers have been blocked from federal farm programs.
The Senate version of the farm bill includes provisions that would allow heirs’ property owners to participate in Department of Agriculture programs and lending, marking a watershed moment for advocates who have been working for decades to assist the mostly low-income farming families who struggle to access federal support programs as a result of owning heirs’ property.
Introduced by Senators Tim Scott, a South Carolina Republican, and Alabama Democrat Doug Jones, the Fair Access for Farmers and Ranchers Act expands how farmers and ranchers can qualify for USDA programs, enables the Secretary of Agriculture to pilot lending programs for heirs’ property owners, and requires USDA to collect data on land ownership and tenure by race, gender, and region.
Heirs’ property often results when land is inherited without a will, creating a situation in which several heirs of the original owner each have a stake in the land without a clear title. Particularly for low-income African-American families, heirs’ property is a common concern. Owners of heirs’ property struggle to access many federal programs, which require applicants to have clear title to land. (For more on the prevalence and complexities of heirs’ property, read FERN’s 2017 investigation in The Nation.)
Currently, a clear title to land allows an applicant to receive a “farm number” from the USDA, which farmers then use to apply to federal programs, including credit and conservation programs. Under the Fair Access for Farmers and Ranchers Act, farmers and ranchers could also qualify for a farm number by presenting other forms of documentation, including five years of tax documents or a tenancy-in-common agreement with other co-owners.
Thomas Mitchell, interim dean and professor at Texas A&M University School of Law and a leading expert on heirs’ property, says that the federal legislation comes at the “most exciting time I’ve ever seen in terms of the willingness to address heirs’ property issues.” Mitchell served as the lead author of the Uniform Partition of Heirs’ Property Act, a law that provides protections for heirs’ property owners who are facing forced sale of their land. The UPHPA has been passed in eleven states since 2010.
Mitchell says it’s “breathtaking” to see how much legal reform has occurred in the past few years to support heirs’ property owners. He says that when he first started working on reforming heirs’ property laws, he imagined there would be a lot of pushback. “The record at the state level of reforming property law to address some of the real injustices that heirs’ property owners experienced had almost universally failed,” he says.
But by and large, that pushback “just hasn’t materialized,” he says. While the UPHPA hasn’t passed in every state where it’s been introduced, it has had few loud detractors.
The Senate legislation, if passed as part of the farm bill, would also boost the UPHPA. The law allows for federal lending to qualifying heirs’ property owners and gives preference to farmers and ranchers living in states that have passed the UPHPA. Mitchell says that if it passes, that law could “further catalyze” the passage of the UPHPA in more states.
The wave of legislative reform in the states and, possibly, at the federal level, also represents a step forward for farmers of color. Heirs property “can happen anywhere in the country and it can happen to farmers of any race or ethnicity,” says Lorette Picciano, executive director of the Rural Coalition, who worked on the federal legislation. “But it happens much more particularly with African-American farmer and ranchers.” She estimates that 40 percent of African-American-owned land is heirs’ property.
A companion bill to Sen. Scott and Sen. Jones’ Fair Access for Farmers and Ranchers Act was introduced in the House by Rep. Marcia Fudge, an Ohio Democrat, on July 11. Nearly 120 organizations have signed on to support the legislation. Picciano says that advocates are working now to drum up more support for the bills as the farm bill goes to conference, hoping that the legislation will survive the reckoning of the House and Senate versions of the bill.