Land Tenure Center Newsletter
Number 79, Spring 2000, p. 1-5
When Melissa Kiniyalocts returned to the University of Wisconsin–Madison Law School in the fall of 1999, some of her fellow students asked a typical question. "What did you do last summer?" Her answer was anything but typical.
Kiniyalocts and another first-year Wisconsin Law student, Jennifer Binkley, had spent ten weeks working as legal "externs" at a North Carolina-based nonprofit group called the Land Loss Prevention Project (LLPP). The assignment came through the Summer Law Extern Program, a nationally unique project begun in 1997 by the University of Wisconsin–Madison Land Tenure Center. It pairs law students with programs in communities that have "extreme unmet legal needs" regarding issues of landownership. In exchange, the students gain invaluable real-world experience.
Among other assignments, Kiniyalocts and Binkley did legal research in support of a lawsuit challenging Wake County’s decision to site a second landfill in a predominantly black mobile-home community in Holly Springs, outside Raleigh. The suit was a success. In September 1999, an administrative law judge ruled that the county had broken the rules in obtaining its permit, handing the community a key victory in its ongoing struggle to stop the landfill.
"I was surprised [by the decision]," says Kiniyalocts, noting that Wake County was represented by lawyers from the state Justice Department, whose resources vastly exceeded those of the LLPP. She was also delighted: "Some of the language I used in my memos had ended up in the administrative law judge’s opinion. Not many first-year law students have an opportunity like that."
Meanwhile, in Edinburg, Texas, another Wisconsin law student, Myrna Gonzalez, was working as an extern at Texas Rural Legal Aid’s Colonias Project, which provides legal aid to families who live in Texas along the Mexican border. Many of these families have purchased land through what is known as a Contract for Deed, which means they make payments to the seller for years but do not acquire the title until they have paid in full. This affords them little protection under the law, making them vulnerable to unscrupulous sellers and unable to use their equity on their land to secure loans.
Gonzalez handled a case involving a Mexican-American woman who had already paid more than 60 percent of the purchase price on her contract for deed and had begun building a house. The woman fell behind on her payments, prompting the seller to threaten that unless she paid within 60 days, he would keep the house, the land, and all the money she had already paid. She came up with the money on the 61st day but the seller said it was too late. She turned to the Colonias Project for help.
"After much research, I found that his remedy was not consistent with Texas law and he had also violated a number of other laws," says Gonzalez. "I wrote several letters to the seller demanding he give the property back to our client." Eventually the seller backed down, agreeing not only to let the woman continue making payments but also to convert the Contract for Deed into a Note, which would provide her with a title.
"When I called her and told her, she was just so grateful, ‘You helped me so much,’" recalls Gonzalez. "It was very gratifying."
Not all of the students who have taken part in the Summer Law Extern Program during its first three years have met with such dramatic success. Some have handled heartbreaking cases of people separated from land that had been in their families for generations for whom there is nothing they can do—except to confirm that nothing can be done. But even these students have come away enlightened and energized, with a keener understanding of how property law—literally the law of the land—affects people’s lives.
"All of my student externs have really gained something," says Professor Thomas Mitchell, who oversees the program for the Land Tenure Center and the UW Law School. "They have all come back and said, ‘My summer proved to be a very meaningful experience.’"
Philosophically, the extern program is an ideal match for the larger mission of the Land Tenure Center. A key area of concern, notes Gene Summers, head of the Land Tenure Center’s North American Program, is the southern United States, where "the decline in ownership of land among African Americans is astronomical."
Indeed, the number of black-owned farms has plummeted from 925,000 (14% of the total) in 1920 to just 18,000 (1%) in 1992. And the amount of land belonging to black farmers has dropped from 15 million acres to less than 3 million acres. White farmers have also seen substantial losses, but the rate of land loss among blacks is 2˝ times as great.
Several factors account for this trend. One is systematic discrimination against black farmers—by banks, white farmers, even the federal government. Last year, the federal government decided to settle a class-action lawsuit alleging that the U.S. Department of Agriculture (USDA) systematically discriminated against black farmers through loan-approval decisions made by predominantly white local committees.
Other black farmland losses are "occasioned by trickery, forgery, duress and other means which give the appearance of ‘voluntariness’ on the face of the conveying instrument," according to a report by the Emergency Land Fund, which merged with the Federation of Southern Cooperatives in 1985. This commonly takes several forms. One is adverse possession, through which a person who takes someone else’s land and behaves as if it belongs to them can claim it for themselves after a certain amount of time prescribed by state statutes, usually 10 or 20 years.
Another method is through tax sales. In some southern states, if a person falls behind in paying their property taxes, another person can pay for them. After three years, the person who has paid the taxes can demand repayment plus interest within the next three years. If the property owner cannot come up with the cash, the person who has paid the taxes can force a sale and acquire the property.
Perhaps the biggest culprit in black land loss is fractionalized heir property, which can lead to partition sales. At root is the failure of many poor rural farmers to leave wills. Absent a will, the property is divided among the deceased person’s heirs—and later among the heirs of these heirs—in accordance with state intestacy laws.
The result is that a given piece of property can have dozens of partial owners, under what is known as a tenancy in common. This is an inherently unstable form of ownership, since any one tenant—no matter how small their interest in the property—can file a petition to terminate the co-tenancy, which can lead to an order that the property be sold.
What often happens is that an opportunistic lawyer or land speculator will acquire a partial interest from a distant and unwitting relative, then use this to force a sale and acquire the entire property. Thomas Mitchell, the extern program coordinator, wrote his 1999 law thesis (now available as LTC Research Paper 132) on this very issue .
"If the losses are not reversed or at least halted," warns Mitchell, "African Americans will enter the twenty-first century effectively shut out of the agricultural sector as producers and rural black people will own less land than they owned in the years immediately following the Civil War."
Mitchell, citing the "well-established links between landownership, community, and democratic participation," calls for new laws governing heir property that would leave landowners less vulnerable to being bought out. "Society," he writes, "has a clear moral obligation to reverse the processes that have stripped black landowners of their land."
Short of such fundamental change, there is not much that can be done to keep farmers from losing their land through partition sales. The externs assigned to the Federation of Southern Cooperatives in Epes, Alabama, often saw situations like this. They also saw instances of outright fraud.
One case handled by externs Brenda Haskins in 1997 and David Miller in 1998 concerned an elderly woman who many years earlier had agreed to relinquish a small portion of her land that jutted onto a white neighbor’s property. But the neighbor drew up papers to cover a much larger parcel, including a church that the woman had built; she signed the papers, not realizing what he had done. The externs, who learned of the matter from the now-deceased woman’s daughter, advised her that the statute of limitations had long since expired. The land was lost to her family forever.
Michael Hudson, an extern from Howard University School of Law assigned to Epes last ummer, concurs that many land losses are irrevocable because of the manner through which land is taken, often by lawyers or even judges. "They knew what they were doing," he says. "If they stole your land, they stole it well."
But even in such cases, says John Zippert, head of the Federation of Southern Cooperatives’ Training Center in Epes, externs have provided a service to people who seek the Federation’s help. "At least they have a definite authoritative statement as to where they stand." The experience also had value for Haskins. "You learn," she says, "that there’s a lot of injustice going on."
Underpinning all these situations is a lack of access to lawyers and legal advice, especially among poor rural minorities. Federal Legal Services programs do not deal with land issues, unless the people involved are declaring bankruptcy. Some southern lawyers are clearly ill-suited to the task of representing this clientele—especially if they have been helping to steal their land. Other lawyers do not want to take such cases, because they tend to be messy, complicated, time consuming, and unprofitable.
Mitchell, who wrote his 1999 law thesis on partition sales of tenancies in common, a prime culprit in black land loss, calls on the U.S. Congress to expand the Federal Legal Services to include assistance to poor landowners by hiring attorneys with experience or training on such issues as estate planning, real estate, property, and tax law. "In order to begin building a cadre of lawyers interested in work with poor, rural landowners," he writes, "these legal services offices should establish internship programs that allow law students to acquire specific expertise in land-related cases."
This is essentially what the Summer Law Extern Program is already doing. "[W]e aim to cultivate a national population of law students with experience in and commitment to a rural public interest practice," states a program prospectus prepared by the Land Tenure Center. "The program is more than just a great summer job; we hope it will change the way students think about the law and, ultimately, about their own career paths and identities."
Mitchell weighs several criteria in deciding who to pick. One important consideration is the potential value of the experience to the student’s personal and professional growth. "One of the purposes of law school—of education in general—is to expose people to things they would not normally be exposed to," he says. In some cases, he felt, spending a summer in the rural south—and Epes, Alabama, he notes, is "as rural as you get"—would broaden the extern’s horizons.
Extern Michael Schmahl recalls an encounter he had with two elderly black gentlemen who had come to see whether they qualified for USDA settlement money. He was asking specific questions about when they had sought and been denied USDA loans. It was a key issue, but Schmahl felt a chill in the air.
"It was almost as if they thought I was asking the questions in order to prevent them from getting money," recalls Schmahl, "as if I was continuing the discrimination process." Finally, one of the men said point-blank, "You know, this sounds exactly like what they would tell us at the USDA when they would deny our loans."
Schmahl told the men he would not take offense if they wanted to talk instead to his fellow extern, Michael Hudson, an African American. At this, their attitude softened.
Mitchell, a graduate of Howard University Law School, says that the instruction in property and land issues that law students receive during their first year of study often leaves much to be desired. "Property law tends to be one of the most abstract, disconnected courses," he says. "Sometimes property is taught as if we’re living in England in the twelfth century." He says externs were thrilled to learn a meaningful skill like doing title searches.
"It’s very difficult to teach the practice of law in law school," reflects former extern Kenya Smith, now a lawyer with a large firm in New Orleans. "What we learn in property law class is not necessarily the same animal we see when we go out and apply it." This aspect of the extern program—seeing the law in action—is what Smith finds most useful. "It’s an eye-opening experience," he says. "It helps you to see where the pieces they’ve shown to you in law school fit into the puzzle."
If funding can be secured, the Summer Law Extern Program hopes to expand significantly over the next three years. The goal is to have sixteen students from varying schools serving four populations: African Americans, Latinos, Native Americans, and Appalachians.
For students at the UW, the externship includes a fall seminar taught by Mitchell for law school credit. The students do projects related to their experience. Kiniyalocts, for instance, produced a 31-page research paper (now LTC Working Paper 36) on environmental justice—specifically the siting of hazardous waste facilities in minority committees. She used the planned Holly Springs landfill as a case in point. Area residents, she says, "not only had a common-sense notion of fairness on their side, but they also found support in laws designed to protect communities such as theirs from injustices that result in environmental decision making."
Mitchell plans to strengthen the program’s training component, perhaps by bringing in staffers from the Farmers Legal Action Group (FLAG), in St. Paul, Minnesota, which has a lot of experience training people. Two of FLAG’s officers have been designated to monitor the USDA class-action settlement, possibly with help from program externs.
Finally, the program plans to do much more in the way of legal education—what Mitchell calls "preventive medicine." Rather than dealing only with farmers who have lost their land, students could be helping to teach them how to protect their interests, from making investments to drafting wills. Previous steps in this direction include a "land loss prevention" seminar for farmers and landowners that externs helped organize last summer at Epes.
The projected cost of the extern program over the next three years is $730,000, or about $20,000 per extern. This includes administration, training, travel, and a $4,000 per-student stipend for living expenses. The program is seeking grant funding from foundations, as well as contributions from law firms eager to meet their pro bono obligations. Recently, the Land Tenure Center and Tuskegee University won a four-year, $3.5 million federal grant to preserve minority ownership of rural land, including a legal education component.
Mitchell, sizing up the program’s first three years, is enthusiastic. "It’s been well-received by the communities we serve and organizations we work for."
Marcus Jimison, executive director of the Land Loss Prevention Project, where Kiniyalocts and Binkley were stationed last summer, agrees wholeheartedly. "Melissa and Jennifer were just a godsend," he says. "They helped out so much. It’s hard to overstate how valuable they were." He especially credits the students’ work on the landfill litigation. "No one gave us a prayer of winning this case and yet we did. There was no way we could have done it without them."
This spring, LLPP plans to file a second class-action suit against USDA, this one attacking the structural bias inherent in the agency’s local committee structure. The federal court, in issuing its ruling in the first USDA class-action suit, expressed concern that the Consent Decree providing for monetary settlements and forgiveness of debt "does not provide ... any forward-looking injunctive relief. It does not require the USDA to take any steps to ensure that county commissioners who have discriminated" no longer are in a position of approving loans. Nor does it ensure that future bias complaints are investigated in a fair and timely manner.
LLPP’s second class-action suit will address all these areas. Jimison is hoping the Summer Law Extern Program will again send students to help. "If they’re anywhere as good as Kiniyalocts and Binkley," he says, "we’ll take as many as we can get."
This article appeared in slightly different form in Wisconsin Week, 1March 2000.
The author is news editor of Isthmus, a weekly newspaper in Madison, Wisconsin.
Copyright © 2000 by Land Tenure Center and Board of Regents, University of Wisconsin. All rights reserved.
Readers may make verbatim copies of this document for noncommercial purposes by any means, provided that this copyright notice appears on all such copies.
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