The Public Trust Debate: Implications for Heirs' Property Owners Along the Gullah Coast

Faith R. Rivers, Vermont Law School

Abstract

Heirs’ property ownership is a significant problem facing the African American community in the Lowcountry of South Carolina. Heirs’ property generally refers to real property purchased by African Americans and held within families for generations without clear title. The land is owned by a group of relatives – the heirs – who possess fractionated fees as tenants in common. The disposition of tenants in common property is governed by the law of partition. Partition provides for the division of property, or its cash “equivalent,” according to owner interests.

The Lowcountry of South Carolina is the birthplace and central hub of the Gullah culture. A significant number of Gullah heirs’ property owners can trace their ownership back to land purchases by former slaves during the Civil War and the Reconstruction period. Through the war-time “Reconstruction Rehearsals” facilitated by missionaries and government officials in the Union-occupied Sea Islands, South Carolina freedmen were the first in the nation to have significant opportunities to acquire property in substantial quantities. For the most part, these lands have been passed down through the intestacy laws and are held as heirs’ property. Because coastal areas are currently experiencing rapid economic growth, heirs’ property is particularly vulnerable to exploitation and development. Accordingly, through the operation of legal and administrative procedures, heirs’ property owners are in constant danger of losing their inheritance through partition orders and tax sales, which are the practical consequences of involuntary tenancy in common property ownership in rapidly developing areas.

Over the past three decades, scholars have proposed various strategies to re-conceptualize and protect heirs’ property. Building upon work of scholars in the field, and the work of two generations of land preservation activists and lawyers who began the struggle in Hilton Head, this piece considers the state of heirs’ property in the Lowcountry of South Carolina and evaluates various conservation strategies that may be utilized to preserve heirs’ property. This Article examines the efficacy of utilizing the public trust doctrine and various tax incentive mechanisms as tools to conserve heirs’ property. In particular, this Article proposes the development of a Gullah Culture Preservation Exemption as a conservation tool that preserves Gullah ownership and traditional use of coastal lands without hindering the property rights of heirs’ property owners.