On the heels of its adoption into law in South Carolina, Professor Thomas W. Mitchell’s Uniform Partition of Heirs Property Act (UPHPA) continues to gain traction, most recently in Hawaii and New Mexico.
Mitchell began his research in 1998, while working on his LL.M. degree as a William H. Hastie fellow at the University of Wisconsin Law School. Mitchell’s interest in studying abuses of partition law grew out of his combined broader interests in researching substantial property losses in the African-American community, losses he observed firsthand growing up in San Francisco, and his interest in learning more about one branch of his family’s history in the rural South.
“When I published my first article on partition law abuses, the consensus opinion was that though my research had great potential to make a scholarly contribution to property law, it would have no impact on law or policy,” Mitchell said. “Those who assumed that the partition law reforms I advocated for in my scholarship were unachievable noted that the property owners most negatively impacted by partition law were overwhelmingly low- to moderate-income, and disproportionately minorities. As a result, these people claimed that no state legislature would be motivated to reform property law to benefit property owners who simply lacked political and economic power, as unjust as that might be.”
Fast forward 16 years, and Professor Mitchell’s approach has been embraced by nine state legislatures and governors, spanning from Alabama to Connecticut and Hawaii to Montana.
Most recently, New Mexico Governor Susana Martinez signed H.B. 181, the Uniform Partition of Heirs Property Act, into law in New Mexico.
For Mitchell, the latest state to enact the Uniform Partition of Heirs Property Act into law signified the very essence of why he specialized in real property law in the first place.
“In adopting the act into law, New Mexico has taken a small but significant step toward rectifying historical abuses, dating back to the Mexican-American War and the Treaty of Guadalupe Hidalgo,” he said. “At that time, Hispanics in New Mexico lost hundreds of thousands of acres of their land as a result of shady partition actions, including cases in which their own lawyers turned on them and convinced courts to sell their land.”
“I always tell my students that no matter how inevitable and permanent any injustice may appear to be, law is always susceptible to being changed for the good. Interestingly, some of those in New Mexico who advocated the most vigorously for enactment of the UPHPA were descendants or successors of some of the lawyers who abused partition law to ’legally steal‘ land from their Hispanic clients in the late 1800s or early 1900s.”
With zero votes in opposition, consistent with the pattern in almost every state that has enacted the UPHPA into law, the act was officially signed into law in New Mexico on April 6, 2017.
At present, Mitchell is working closely with colleagues at the Uniform Law Commission, the Heirs’ Property Retention Coalition, and elsewhere to assess the climate in other states marred by heirs’ property abuses.
“The problem is neither solely urban nor rural, and it is not geographically restrictive,” Mitchell said. “I am proud of the nine states to date that have adopted the act into law as the act is helping a very diverse group of vulnerable property owners. I look forward to continuing that momentum, hopefully including in Texas, which would be a huge milestone for us if we can get it enacted into law here.”
This story was originally posted on the School of Law website.
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