Thomas Mitchell Plays Key Role in ABA Adoption of New Model for Family Property

ABA Adopts Act

Recently, the American Bar Association approved a model law called the Uniform Partition of Heirs Property Act. After decades of stories about families forced to sell long-held property at lower-than-market prices as a result of the actions of unscrupulous real estate speculators, the law aims to produce fairer outcomes in how land is divided among heirs.

For Thomas Mitchell, an associate law professor at University of Wisconsin Law School and the Act’s primary drafter, this shift could be considered years in the making. “For the past fifteen years, families from across the country have contacted me because they have faced the prospect of losing property that had been in their families for generations,” Mitchell says.

Years in the Making

Mitchell’s 2001 Northwestern University Law Review article, “From Reconstruction to Deconstruction,” the seminal article in the field, explored how forced partition sales of tenancy in common property, referred to more commonly as heirs’ property within poor and minority communities, have been a major source of black land loss within the African American community.

At the time of the article’s publication, few had explored tenancy in common laws from such an angle. Many readers, while praising Mitchell’s insight and his proposals for reform, predicted no change would come from his scholarship because they believed that no one with any real power would support reforms designed to help disadvantaged property owners.

However, a subsequent Associated Press article, “Quirk in law strips blacks of land,” quoted Mitchell and brought national attention to the topic. Based upon his work in the area, the A.B.A. asked Mitchell to serve on a task force that would address the partition abuses the A.P. article uncovered. This task force developed a strategy that included requesting the National Conference of Commissioners on Uniform State Laws to form a committee to draft a uniform law reforming partition law.

Mitchell continued to conduct research in the field. His 2005 Wisconsin Law Review piece examined the legal problem from the bottom up and argued that legal reform could help thousands of black families who still own millions of acre of land, an important fact not commonly known. In 2010, Mitchell published an article in the Florida State University Law Review that addressed an issue of the economics of forced sales and lay the foundation for one of the key reforms in what would become the Uniform Partition of Heirs Property Act.

In his work on drafting the Act, Mitchell was able to call upon a number of organizations that participated in the Community Development Externship Program, a program he began building while completing his L.L.M. at UW Wisconsin as a Hastie Fellow and serving as an Assistant Dean.

Going Forward

The Act was approved at the ABA’s Midyear Meeting in February 2011. States aren't required to use the new model; their own politics determine which do and don’t. Within days of the A.B.A. meeting, Oregon became the first state to introduce a bill to enact the Act. Nevada has since become the first state to enact the Uniform Partition of Heirs Property Act.

For Mitchell, the A.B.A. adoption of the Act was a significant achievement, yet work remains. “Taking the long view,” he says, “I’m quite optimistic the Act will help families to strengthen their property rights and to protect their real estate-based wealth.”

Additional Info.

To read the Dow Jones article covering approval of the Act, click here.

To read Mitchell’s Northwestern University Law Review article, “From Reconstruction to Deconstruction,” click here.

To read his Wisconsin Law Review piece, “Destabilizing the Normalization of Rural Black Land Loss: A critical Role for Legal Empiricism,” click here.

To read his Florida State University Law Review article “Forced Sale Risk: Class, Race, and The ‘Double Discount,’” click here.

Submitted by UW Law News on June 27, 2011

This article appears in the categories: Alumni, Articles

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