“Because the age-old property laws I have helped change in states in every region of the country were widely considered impossible to reform, I hope my work inspires others to engage in law and policy work to address injustices, no matter how resistant to change these injustices may appear to be.” — Thomas W. Mitchell
Thomas W. Mitchell is a property law scholar, who is working to reform laws and develop policy solutions to address the mechanisms that deprive Black and other disadvantaged American families of their land, homes, and real estate wealth. A MacArthur “Genius Grant” Fellow, he is the principal drafter of the Uniform Partition of Heirs Property Act (UPHPA) of 2010. In fall 2022, he will join the faculty at Boston College of Law as Professor of Law and the second holder of the Robert F. Drinan, SJ, Chair.
Growing up in San Francisco, Mitchell witnessed displacement of Black residents and businesses that occurred in part because the people affected lacked secure property rights. As he came to realize, property ownership is one of the most reliable tickets to the American Dream. When strong property rights have been instituted, urban and rural Black families and other vulnerable people are enabled to build wealth and preserve important aspects of their history and culture, despite predatory policies and laws that have long been used to marginalize these same communities.
During Reconstruction, newly-emancipated Black farmers became landowners in droves, peaking in the early twentieth century when it is estimated that more than 200,000 Black farmers owned an estimated 16 million acres of land, primarily in the South. Since 1920 however, the number of Black farm owners has steadily declined, and with it the access to the multigenerational wealth that real estate ownership cultivates. Over the course of many decades, Jim Crow policies and laws, or the vestiges of such policies and laws, have harmed Black property owners and aspiring owners, leaving them vulnerable to predatory real estate practices, and having implications on the widening racial wealth gap and declining economic mobility.
Much of Mitchell’s scholarship has focused on an antiquated property law known as the law of partition that has been, among other things, a major driver of Black land loss in the United States. A subsect of tenancy-in-common ownership, the most prevalent form of common real property ownership in the United States, the law of partition most often tends to have its most pernicious impacts when property owners lack a formal will or estate plan, which often results in fractional ownership of the property for the heirs. Both due a lack of access to affordable legal services and distrust of the legal system it is estimated that over 75 percent of Black Americans (compared to only 35 percent of white Americans) die without a will. Over generations, the number of heirs often grows and unclear title leaves landowners vulnerable to losing their most significant wealth asset to outside speculators.
An outside third party need only convince one heir to sell their fractional interest in the property and that party then becomes a common owner (or tenant in common) with the remaining heirs. Any heir or co-tenant–family member or third party–can petition a court to order a forced sale of the entire plot or home, no matter how small their fractional interest and no matter how long they have owned their interest. Prior to the UPHPA, using a narrow, economics-only test that did not allow families to offer evidence of the heritage or cultural value of their property or how a forced sale might severely reduce their quality of housing, courts routinely ordered the forced sale of entire properties. These sales have usually resulted in an unfair price well below market value, stripping many families of their generational wealth.
Studying how Black landownership in America has changed since Reconstruction, Mitchell documented various facets and consequences of involuntary land loss and the implications for Black land ownership and wealth creation in the United States. By some estimates heirs’ property in Southern states—where many Black families can trace pre-Civil War ancestral ties—has been estimated at $28 billion. While much of the work around heirs’ property has focused on Black families in the rural South, it is a universal issue impacting low-income communities in urban and rural areas, across every region of the United States from Native Hawaiians in Hawaii, to Latinos along the New Mexico-Texas border, to poor whites in Appalachia, and to Black families in Brooklyn in New York City. It even has impacted some middle-income white families, including farm and ranching families, that have had poor estate planning.
Designed to reform the laws of partition in a systemic way through a legislative fix, thereby helping to prevent the racial wealth gap from growing even wider, Mitchell served as the principal drafter of the Uniform Partition of Heirs Property Act (UPHPA) of 2010, a model state statute promulgated by the Uniform Law Commission. The drafting of the UPHPA represented a rare bottom-up and top-down collaboration with representation from grassroots, community stakeholders; expert attorneys and judges affiliated with well-established, elite organizations and law firms; public interest and legal aid organizations; and academics. The UPHPA has three principal substantive reforms—a co-owner buyout or right of first refusal provision; a requirement for courts to consider both human values and economic considerations when deciding whether to order property divided or forcibly sold instead of the narrow economics test that has led to many unnecessary forced sales of heirs property; and an innovative sales procedure designed to produce prices approximating a property’s fair market value. These particular UPHPA provisions and some other key ones as well help preserve vital property rights of families often relegated to the margins of society, thereby enabling them to avoid involuntary and predatory forced sales. In sum, it helps these families better preserve their ownership if they choose to do so or at least the generational wealth associated with their ownership upon the sale of their property.
The UPHPA has been enacted into law in 18 states and the US Virgin Islands, jurisdictions that contain a majority of the U.S. population given that they include 6 of the biggest 8 states. Mitchell continues to advocate for additional states to enact it, including 8 states and the District of Columbia that are considering it at this time. An advocate for legislative reform at the local, state and national level, and someone who is also active in developing policies to help disadvantaged property owners and farmers, Mitchell is remedying a major factor in the racial wealth gap and creating mechanisms for many more disadvantaged property owners and communities throughout the country to secure their property and preserve their wealth.
Mitchell earned a BA from Amherst College, a JD from Howard University School of Law, and an LLM from the University of Wisconsin Law School, where he served as a William H. Hastie Fellow. Named one of the 50 Most Important African-Americans in Infrastructure by The Journal of Black Innovation, he also received the Howard University Award for Distinguished Postgraduate Achievement, an honor shared by Thurgood Marshall and Vice-President Kamala Harris, among many other Howard luminaries.
His articles have appeared in journals such as Northwestern University Law Review, Alabama Law Review, Wisconsin Law Review, Florida State University Law Review, and in American Bar Association and USDA publications. He is the lead, co-editor, and a contributing author of a book the American Bar Association will be publishing in spring 2022 entitled, Heirs’ Property and the Uniform Partition of Heirs Property Act: Challenges, Solutions, and Historic Reform.
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