If you wanted to pinpoint where exactly the need for Missouri’s Save the Family Farm Act began, you would have to go all the way back to Reconstruction.
It started right after the Civil War, when freed slaves in the South purchased millions of acres nationwide to start their own farms. These were passed down from generation to generation, but because of systemic barriers to education and a lack of access to legal services, most black landowners didn’t have a will.
Without a legal document to govern ownership of the land, the farm’s ownership would be split among increasing numbers of “tenants in common,” usually the family of the original owner. The farmer who first purchased the land might have dozens of grandchildren and scores of great-grandchildren as time went on, each with equal claim to the property.
A legal mechanism called “partition by sale” could be used by any shareholder — regardless of the size of their stake in the property — to force a court-ordered auction of the farm. The proceeds would then be split among everyone with claim to the land.
Historically, a public auction would bring in a sale price much lower than the estimated value of the home.
During the Great Migration of black Americans from the South to large cities in the 20th century, many family members sold their interests in family farms to land speculators, who leveraged their small interest in the land to force a sale.
Usually, the land was the family’s wealth, and they rarely had enough cash to purchase it back at auction. This pushed thousands of farming families off their land. Although this issue disproportionately affected poor black families, landowners of all races were taken advantage of using this legal loophole.
Thomas W. Mitchell, a professor at the Texas A&M University School of Law, has studied this phenomenon since the late 1990s. Black landowners are still less likely to have a will than their white counterparts due to a lack of access to legal services, Mitchell said.
In 2001, reporters from the Associated Press interviewed Mitchell for a series called ”Torn From the Land” about the predatory legal practices that displaced vulnerable black farmers.
The AP series caught the attention of the American Bar Association, which appointed Mitchell and other lawyers to a task force charged with finding possible solutions to the problem.
The task force came up with three initiatives. The first was to encourage transactional attorneys — lawyers who handle real estate deals and litigation — to provide their services to vulnerable landowners at a reduced cost or for free. Second, they proposed a year-round program that would send law students at the University of North Carolina into rural areas to provide legal services to those in need.
The final proposal was to try to convince the Uniform Law Commission to create model legislation that could fix the partition law that allowed for the injustice.
Crafting a law
The Uniform Law Commission is an organization of lawyers from all states, plus Puerto Rico and the U.S. Virgin Islands, that creates model legislation with the goal of making laws consistent across state lines.
Its most notable achievement is the Uniform Commercial Code, which was enacted in all 50 states and ensures that a business contract will be enforced the exact same way all over the country without the need for a federal law. In Missouri, Uniform Law Commissioners are appointed by the governor.
In the 127-year history of the ULC, the group has generally only decided to draft legislation on relatively nonpartisan, legally complicated topics. Financial, real estate and family law are common topics of ULC model bills. Guns, abortion and other social issues are not.
“We try to pick topics on which we think we can be helpful,” ULC commissioner and MU law professor David English said. “Politically more sensitive issues, we try to stay away from.”
Mitchell worried that the social justice aspect of partition law reform would scare off the ULC. He was wrong.
In February 2007, the commission called to inform him that the ULC had decided to draft model legislation that would give property owners without a will more legal protections.
Two months later, they called again. This time, it was to ask him to be the principal drafter, a “reporter” within the commission.
“I just about fell out of my chair when I got the call,” Mitchell said.
Mitchell was the second African American reporter on a ULC committee since the organization’s inception in 1892.
The Uniform Partition of Heirs Property Act took shape in the committee over three years, with every detail hammered out and all repercussions considered and debated by the lawyers.
Also involved in the drafting process was MU law professor R. Wilson Freyermuth, executive director of the Joint Editorial Board for Uniform Real Property Acts, a group of lawyers from various legal organizations including the ULC and American Bar Association.
At the Uniform Law Commission’s annual meeting in 2010, the proposed act was read word-for-word on the floor to more than 300 commissioners.
They approved it. After the ABA gave its stamp of approval, the bill was ready to go to state legislatures.
State by state
The legal solution reached by the commission states that in the case that one tenant-in-common tries to force a sale of the property, other tenants-in-common would have the chance to buy out the other’s share in the property before a public sale.
It also strengthens courts’ preferences for physically dividing the land when possible, making it easier for existing residents to stay on the property. For example, if three people owned a piece of property, one could sell their third of the land, allowing the others to keep their shares.
Additionally, the bill requires courts to take into consideration historical and sentimental value of the land, and whether the sale of the property would leave a tenant homeless or pose a substantial financial loss.
If the property must be sold, the bill directs courts to appoint an unbiased real estate agent to market the land instead of auctioning it off, which typically brought in historically low prices. This brings a higher price for the property and ensures that shareholders receive a fair payment from the sale.
Missouri Sen. Lincoln Hough, R-Springfield, introduced the bill in the 2019 session as the Save the Family Farm Act.
Hough learned about forced sales when one of his neighbors — a family friend — was forced to sell his property by a sibling who wanted the cash value of their share.
It was the exact situation that the ULC’s bill is designed to prevent.
Hough felt the sale was unfair to his friend and figured there was a legal fix to the problem. He started calling experts in partition law, and his research led him to Freyermuth.
Freyermuth sent over the text of the bill. Hough then passed it on to Rep. David Evans, R-West Plains, who introduced the bill in the House.
The Save the Family Farm Act was incorporated into a larger court reform bill, SB 83, which Gov. Mike Parson signed into law July 9.
“In my opinion, this doesn’t take anything away from anyone,” Hough said. “This doesn’t take away any individual’s rights to sell the property or partition it the way they see fit. It just provides an avenue for those individuals for those who do want to stay.”
Of the 431 acts approved by the ULC, 87 have become law in Missouri since 1905. Last session, in addition to the Save the Family Farm Act, the Uniform Athlete Agents Act was introduced in the legislature.
That proposal, sponsored by Rep. Greg Razer, D-Kansas City, would govern relationships among student athletes, university athletics programs and athlete agents. It has passed in 42 states, but it never made it to the House floor for a vote in the 2019 session.
Freyermuth said the ULC plays a different role than other advocacy groups. While interest groups can craft quicker responses to pressing issues, the ULC has the time and expertise to create policies that will achieve the desired results, he said.
The ULC also aims to create policies without the partisan influence that other legislative organizations feel, English said.
“We try to be independent,” English said. “I don’t know, mostly, who in the Uniform Law Commission is a Democrat or Republican.”
The ULC fills a gap in a system where lawmakers don’t have the time or resources to come up with nonpartisan policy solutions to complex issues.
“I generally don’t go seeking out some bill that someone else has put together,” Hough said, “but I think it is good that there are some entities out there that will do this work, vet out these issues and work with the state.”
Supervising editor is Mark Horvit.