Stephanie: Hello, we have Lauren and AD here with us today. Welcome y’all. Thank you so much for joining us!
Lauren: Thank you Stephanie and to the North Carolina Housing Coalition team. We are excited to be here today.
AD: Yeah thanks.
Stephanie: We’re excited to have you. Before we jump in, can you both introduce yourselves and tell us a little bit about Legal Aid of North Carolina and the Fair Housing Project?
Lauren: Sure. So my name is Lauren Brasil. I am a co director and managing attorney of Legal Aid of North Carolina’s Fair Housing Project. Legal Aid of North Carolina is a statewide, nonprofit law firm. We provide free legal services and a variety of civil matters to North Carolinians across all 100 counties. The Fair Housing Project is a statewide access to justice project of Legal Aid that was founded in 2011 that works to ensure equal housing opportunities for all North Carolinians through education, outreach, public policy, advocacy and fair housing enforcement.
AD: And my name is AD Skaff. I’m a supervising attorney and a social worker for Legal Aid of North Carolina. I was a social worker for about 13 years, and then went to law school. I’ve been with Legal Aid for five years now and I do disaster relief and fair housing.
Stephanie: Wonderful. Well again, thank you both so much for being here. This episode was inspired by one of our conversations on a housing call a few months ago where we talked about heirs property and a recent settlement that Legal Aid won with NCORR. We’ll get to that later, but I’d really like to start with talking about the basics of heirs property. What is heirs property? What does it look like in North Carolina? Lauren or AD, can you give us just a basic overview of what is heirs property?
AD: Yeah, so heirs property is sort of a legal term for family land, communally-owned land. When the last recorded deed owner passes away without a valid will in North Carolina, it then passes to their heirs. And that can happen for one generation, [or] it can happen for multiple generations. But then the land becomes, again, what’s described as heirs property and is owned by all the heirs as “tenants in common” – another legal term. In North Carolina, there’s no “one size fits all,” right? So it can kind of look different depending on where you’re at. For our work at Legal Aid, a lot of the heirs property is smaller tracts of land where people are living – that’s their primary residence and it’s been passed down, you know, sometimes two or three generations. A lot of the typical literature that we’ve seen on heirs property has kind of talked more about these really big tracts of land where there’s natural resources, or it’s farmland. But for us, what we see is, again, just smaller tracks. [For example], an acre, sometimes under an acre, where you might have one or more houses where [..] family members are living.
Stephanie: Thank you. Now, we know what heirs property is and some of the ways that you see it here in North Carolina, […] why is it important to know about?
AD: Yeah, […] it’s important to know about an heirs property owner’s rights to the land. One of the things we’ve seen in our work in this space is a lot of misconceptions about what that means when a person is living on or is an owner in heirs property. So, some of the things that we’ve heard is that they’re not like a “real” owner, or they can’t really do anything to the land unless everybody unless they can locate everyone, no matter how far and wide they may be scattered. And so one reason why education about it matters, is educating community groups and individuals about the fact that a person who is an owner of an heirs property can make improvements on the land. They’re allowed to do that and they are a real, bona fide owner. Just because their name is not on the deed doesn’t mean that they’re not “real.” I think […] dispelling those sort of myths is helpful and the next step of why it’s important, because then it allows, again, individuals and community groups to sort of challenge the traditional, or at least what we’ve seen, the narrative around it, so that they can access some of these systems that heirs property owners have been traditionally kept out of.
Stephanie: Absolutely. And so definitely this form of ownership, right? Whenever I think of ownership –land ownership or homeownership– that’s one of the biggest ways that people in our country amass wealth or try to accumulate wealth. And so I can imagine this has a lot of ties and impacts to generational wealth building […] whether or not people can successfully do that or access that, especially if they don’t know their rights.
Do you have some examples from the disaster relief standpoint, how this [heirs property’s impact on generational wealth] comes into play as well?
AD: Yeah, so, again, a lot of the narratives we’ve seen around heirs property is again about farmland and natural resources. But when we’re thinking about smaller tracks, there’s still generational wealth there as well, right? And there’s value to having family owned land that you can go to if you need to. We’ve certainly had families that we’ve worked with where, maybe they live there for a little bit, and then they get back on their feet, and then they go somewhere else, or they’ve lived there their whole lives. Again, it can look different for different families.
When an owner of an heirs property is kept out of traditional financial means of assistance, so not just disaster assistance, but also, if you think about land ownership, you know, main upkeep of your of your home […] there’s lots of repairs that you might can do on your own, but then once you sort of move past that and need [for example] a home equity line of credit to make bigger repairs, and the banks are not allowing you to access that type of assistance, then homes can fall into disrepair, […] they’re at risk of condemnation, or people just being displaced because they can’t live there –it becomes unlivable. And then you also see where heirs property owners are more vulnerable to predatory lending, right? So, they can’t get into these traditional financial institutions, so then they’re more likely to go to predatory lenders because they need money to upkeep the home.
The other place we see it is especially aging in place. So, people are aging in place, they want to stay in their homes, they want their homes to pass on to their heirs – to their children, or whoever else in the family. And property taxes become a lot if you’re living on a fixed income. And so, in North Carolina there’s the Homestead Property Tax Exemption. It can offer property tax relief if you’re over 65 or if you’re permanently disabled. However, if you are an owner in heirs property, your tax burden is only reduced by the percentage that you own the property. So if I’ve lived there my entire life, taking care of the land, etc, etc, but I only technically own 10% of the land based on how many other owners there are, then I can only get it [the tax bill] reduced by that amount. And so that’s another sort of means of, if you can’t continue to pay that bill, you’re then at risk for tax foreclosure, which is another way of losing land, sort of losing out on that, again, generational wealth, that equity building that comes from, again, having family land.
Stephanie: Right. Wow. So [it sounds like] there’s definitely complexity when it comes to heirs property. Not just, you know when the property is transferred over or not transferred over formally, but as they exist throughout the lifetime of the properties and barriers that people can have when it comes to accessing resources. From what little I do know, I imagine this also has sort of a disproportionate impact on marginalized communities or communities of color. And so I’m interested from a fair housing perspective, Lauren, if you could talk a bit about how you view heirs property from that point of view?
Lauren: Yeah, there’s decades of research that have looked at heirs property and where the parcels are located and who the owners are. And the research does show that it is disproportionately owned by Black homeowners. And then we’ve also done our own internal analysis of heirs property data, and I think the data that is becoming available, and we’re learning more, and there’s new methodologies that are coming out and trying to measure truly what the impact is. But it does seem, both in other parts of the country, as well as in North Carolina in particular, that owners of heirs property are disproportionately Black, or the parcels are located in disproportionately Black Census Block Groups. And so that is part of what led to our fair housing case in the disaster relief context.
Stephanie: Thanks for connecting those two. Could you tell our listeners a little bit about that case? Leading up to it, what was it about, and the outcome?
Lauren: Yeah, so in around 2020, our Legal Aid staff started seeing that many low wealth ReBuild applicants and disaster impacted communities that were impacted by [Hurricanes] Matthew and Florence were struggling to get through the ReBuild application process and to actually secure ReBuild assistance. And so we convened working groups here in Durham with our staff from our Disaster Relief Project, our EJI project, and our Fair Housing Project to examine some of the barriers that our clients were facing and to see if we could identify any patterns. One of the patterns and issues that we were able to identify as impacting numerous clients was that owners of heirs property were being required […] there were additional burdensome requirements on their “proof of ownership” –how they were required to prove ownership to be eligible to even move forward in the ReBuild application process. There were certifications and additional documentation that needed to be provided. And it got to the point where what we saw is that many owners of heirs property were not actually able to get through the process. And so we look at that issue through a racial equity lens and through a fair housing lens. We look at the data, the research.
And so the Federal Fair Housing Act is one of our most important civil rights statutes when it comes to housing. It prohibits discrimination in housing because of race, color, religion, national origin, sex, disability and familial status. The Fair Housing Act prohibits intentional discrimination because of race, but it also prohibits what’s known as disparate impact. Disparate impact is a legal theory to proving discrimination that has been reaffirmed both in our courts in the Fourth Circuit as well as the United States Supreme Court. And what it really is, is that, well, sometimes there are these seemingly neutral policies that don’t call out a protected class, but these policies disproportionately impact or deny equal housing opportunities because of a protected class or disproportionately impacts protected class members. When we identified the ReBuild policy, and then we looked at the data, we saw that, well, the applicants that were applying for this program, or that would be eligible to apply for this program, were disproportionately Black, or the properties are disproportionately located in Black Census Blocks.
And so we looked at that and then ultimately ended up filing an administrative complaint with the US Department of Housing and Urban Development. Now your fair housing rights can be exercised both in court and/or with an administrative complaint. HUD also has compliance review authority under the Fair Housing Act and a few other civil rights statutes. So we filed an administrative complaint challenging the policies and practices related to the proof of ownership requirements as they applied to owners of heirs property, and argued that it was disproportionately denying equal housing opportunities to Black applicants. So it was discrimination because of race. Now that’s only one step in this burden shifting analysis, right? So we’ve identified this policy, we’ve shown there’s a disparate impact, but then the program gets to say, “Well, we have these legitimate non-discriminatory reasons for having these additional requirements.” And so they present their reason, and then it comes back to the complainant, or the person complaining about the policy to say, “Well, we think there’s a less discriminatory alternative to that policy that still meets programmatic concerns that you may have and still addresses your goals without having such a significant disparate impact.” And so in this case, in 2021, FEMA had changed their proof of ownership requirements for owners of heirs property to access FEMA assistance. They were reducing barriers for owners of heirs property and allowing self-certification. And so FEMA funding is similarly subject to Stafford Act funding, and so it addresses those same programmatic concerns that ReBuild had. And so through that, that gave us a strong Fair Housing angle, or what we viewed as a strong Fair Housing angle.
I’m a really big advocate for the HUD administrative complaint process, and one of the main reasons why is because, by statute, it requires conciliation, or there’s settlement discussions like mediation. And it’s required for HUD to offer the parties an attempt to resolve the issue without engaging in costly litigation. It’s this alternative way of trying to work out issues between parties. And so HUD offered us and our clients, as well as the ReBuild program, the opportunity to conciliate. We’re grateful to them that they wanted to conciliate and to talk through these issues and how they could potentially change their policies to make it more available so owners of heirs property could actually get through the ReBuild application process. So, we were able to work out policy changes that we believe opened up opportunities to more owners of heirs property, that still met their [ReBuild’s] programmatic concerns, and that resulted in the Conciliation and Voluntary Compliance Agreement. And so part of that was that we represented our client, but there were also 74 other applicants that were identified as potentially being wrongfully denied because of the proof of ownership requirements that were there at the time, and they were given an opportunity to appeal. And so then our hope is that we can begin to move these conversations forward, so when future disaster relief funding becomes available, we can implement these similar policies with less restrictive burdens on owners of heirs property, who again are disproportionately Black. And then, [we’re] hoping to see that in other [programs], like CDBG funded home repair […] to similarly adopt these less restrictive policies.
Stephanie: Wonderful, thank you. AD or Lauren, could you give an example of the conciliation? What was an example of some of the requirements for proof of ownership before that was disparately impacting heirs property owners? And then what have been some of the solutions or proposed suggestions to kind of resolve that? I know Lauren, you mentioned self certification, but AD, if you can give an example of before and after, the difference.
AD: Yeah, so at the beginning, it was that your name had to be on the deed and that was kind of a hard and fast [rule] […] they had to be on the deed. Through advocacy efforts, they [ReBuild] came off that a little bit. But then you had to sign an attestation and have documentation that 1) you had located all of the heirs and they had given affirmative consent for you to participate in the program, or 2) you could not locate them. So, it had sort of the same impact, right? Because, if you think about, two or three generations where it’s passed to heirs. Let’s say I’ve got five kids [and] those five kids have five kids. Math is not my strong point, but it starts to add up, right? And then not everybody’s staying there, because, again, like I said earlier, you know, especially for our clients, these are not gigantic tracts of land. […]. So locating everyone, what we were seeing was maybe they located the person, but then they never got that affirmative consent. Or this person had nothing to do with the land but then was just like, “No, I’m not [giving consent].” Families are messy, right? I know mine is, I know most people’s are. Shout out to my mom that might be listening, you know, families are messy. And so, then all of a sudden, your second cousin’s got power over whether or not you can get this assistance.
So, that’s where it was when we filed our complaint. We couldn’t, even through our advocacy, get the program to move past that hurdle. And so through the conciliation process, and then through the agreement, where it is now is that the applicant [has] to show some [proof], a very basic, “here’s the last recorded deed, and I am an heir of that person,” and that’s pretty much it. And then they do have to say that they have already notified, or will notify the other heirs, as they see fit. It takes away that burdensome [process of] they have to show proof, they have to get this affirmative consent, because, again, [families are] messy. So they get to choose what’s best for their family and how they notify them. So we’re pretty excited about it!
Stephanie: Yeah, that’s definitely a shift. Just the difference between [being required to prove] you have already reached out to everybody, versus saying, “I will reach out as I see fit.” It’s giving some of that autonomy back to the person living there and the owner, to be able to navigate that family property themselves. That’s amazing.
So, I’m trying to follow the timeline. So 2020 is when this was originally filed, or 2021? And now we’re in 2024?
Lauren: So we started looking at these issues probably around 2020. I’m trying to remember when filed….
AD: It was 2022? We had, you know, some accidents. At first, we had hoped that we could move [inaudible] a little bit, and so we filed in 2022, and then things got cooking in early 2023. But yeah, it took a little longer than anticipated [laughs].
Stephanie: Then the analysis you were doing that in 2020 that’s what I think Lauren was saying, right?
Lauren: Yeah
Stephanie: So those two parallel processes were building, and the pandemic didn’t help anybody’s timeline.
AD: That’s right [laughs]
Stephanie: Wow. It’s amazing how an administrative fix can have so much of an impact. And I think that’s something that I want to emphasize. You know, from the perspective of an organization that does policy work and advocacy work, I think a lot of times it’s easy to fall into the trap of thinking that fixes are always big and huge. Oftentimes, processes like conciliation, mediation, and then evaluating how our processes may or may not be impacting the communities we’re trying to serve, I think, is a big deal, and it’s one that can be challenging for some agencies to do, especially if they’re dealing with federal funds. But just imagining in this kind of context for disaster, at least, to unintentionally, block families or households from aid, and then for the solution to be a fairly manageable administrative fixe is […] it’s just amazing to think about.
So for folks listening, thinking about, “What are other examples of this that you see in your day to day?” Not every sort of change comes from a legislative place, and because a lot of these federal programmatic rules and standards do come from a legislative place, or from a bit of a different structure, but even just that slight change and ruling and what they accept is a big deal.
AD: And I think the other thing, especially for community organizations listening and thinking about this […] one takeaway definitely for me, is having conversations is great. There’s lots of where you’re working with other agencies, it might be government agencies or whoever, and getting to be in the room and have those conversations is fantastic. But also, especially for advocates to know, “Where’s the line?” Like, maybe the conversations have stopped moving. Because we have a good relationship with the North Carolina Office of Recovery and Resiliency […] We don’t always agree, but we have a good working relationship. But we had moved it a little bit, but then we had to kind of make that decision of, “Okay, we’ve stalled out. What do we do now?” And so we had to make that leap and we’ve maintained a good working relationship through it. And I think that’s another [thing]: Sometimes groups are worried if they take that next step, then it’ll ruin the whole relationship, they won’t have the same kind of, you know, whatever. And we were certainly fortunate, but, it didn’t. We were able to continue to work through it, which was good.
Stephanie: That’s an important distinction, right? So although the fix can be administrative, there’s still going to be that threshold of, if the momentum is not there, or, you know, the second or third or fourth party is not budging, right? What other steps have to be taken
AD: Right.
Stephanie: On the topic of takeaways, or any other recommendations, something that I would really love to pick your brains on is, are there any other recommendations for partners or even folks that are in impacted communities that see this? What recommendations do you have for them and how they can approach this issue, whether from a disaster recovery standpoint or from the generational wealth standpoint?
AD: I think our big hope, our whole aim behind the complaint, in addition to getting people access to this type of assistance, was sort of reframing this. We wanted to come at this from respecting the familial nature of the property. Instead of trying to change it to fit into the system, hoping to change the system to respect the nature of the ownership. This type of ownership has been around forever, it’s going to continue to be around. And so I would say, sort of reframing how you think about heirs property, and that it’s not a problem. Family owned land is not an issue. It’s how we treat it that is the issue. And so for groups that are dealing with this and are in positions to, think more creatively about how they can still provide assistance. And you know, maybe it’s creative. Maybe it’s that, you know, again, like we’ve said a couple of times, not one size fits all, every family’s different, everybody’s different. How can they approach that so that people can still maintain their land and just live in their homes … not lose it?
Lauren: Yeah, and for recipients of federal funding, the Fair Housing Act includes an explicit mandate to “affirmatively further fair housing,” right? And so folks that are receiving federal financial assistance and HUD assistance,when they’re developing their programs, Affirmatively Furthering Fair Housing means more than just not discriminating against people, right? It’s taking affirmative steps to reduce barriers to accessing HUD funded programs and to addressing historical patterns of discrimination and segregation. So when you look at the historical context of heirs property, and why we even have heirs property, I think it’s really important that we look at it through this Affirmatively Furthering Fair Housing lens and affirmatively look at how we are implementing policies and what impact these policies are having, and who is being excluded, and are there changes that we can make to reach these marginalized communities that have historically been underserved, and who are intended to be served by these programs?
Stephanie: Absolutely, I think those takeaways fit really well. That reminder of, yes – even though this is topic of our discussion – heirs property, family ownership is in and of itself not the problem. And being able to look at how we treat something that is so common, has been common, is an important way to look at policy change and to look at just the different ways that our communities exist on a day to day basis.
Are there any other takeaways or recommendations that either of you have for our listeners? Or if they’re interested in learning more, what they should do?
AD: If there are groups out there that are thinking about this and are thinking about putting together policies that address this, we’re more than happy to look at those and help out. We want people to be able to access stuff.
Lauren: We’re a collaborative team and we appreciate our partners across the state doing this work and serving our communities. So, if we can be a resource to them, we’re here. So please feel free to reach out to us.
Stephanie: Wonderful: Thank you both so much.
I have one last question. Really there are two. They’re rapid fire questions. I’m going to try to do the trendy podcast thing. So, I will start with Lauren. Rapid fire question number one is, “What is a meal that you have enjoyed recently?”
Lauren: So, because it’s summertime, our family has been doing a lot of grilling and a lot of grilling of shrimp tacos. That’s our thing lately. Taco Tuesday is big in our house [laughs].
Stephanie: What about you, AD?
AD: Um, so I actually almost texted you [Lauren] a picture of this the other day. So, we’ve also been grilling and I grilled some peaches and then did burrata with the peaches, and uh, Lauren is a big burrata fan also…
Lauren: I am.
AD: [Laughs] Everyone out there, please grill your peaches with the burrata.
Stephanie: We might have to attach recipes.
AD: If there’s one takeaway… [laughs]
Stephanie: Another takeaway [laughs]. Alright, second and final rapid fire question, and AD I’ll start with you this time, what is a song that you’ve really enjoyed this summer?
AD: Ok, I’m going to be a cool kid and say “Hot to Go” by Chappell Roan. And that’s without my Spotify with me to help me know what I’ve listened to.
Stephanie: That’s impressive
AD: That’s the only one I’ve remembered.
Lauren: I had to check my Spotify, but you know what song I’ve enjoyed this summer? The Dolly Parton-Pit Bull remix of “Powerful Women.”
AD: [Laughs] That’s fantastic. Lauren’s answer beat mine.
Stephanie: We need to find a way to incorporate both of those things [laughs].
In solidarity, I’ve been really enjoying … I’ve been on a croissant kick lately. For those that don’t live in the Triangle that are listening, Guglhupf has a great croissant sandwich and just croissants in general. And, I think an anthem recently has been Kendrick Lamar’s “Not Like Us.” It just gets stuck in your head. That’s been a motivator and has helped me get hype a few times these last few weeks.
Thank you all so much for indulging me with those rapid fire questions and also just for spending the time and sharing your expertise. We’re recording this in early August, for those that are listening, and we will have actually several more parts to this theme of heirs property ownership and we’ll also have additional conversations with folks from the Land Loss Prevention organization, from other efforts around the Triangle and around the state on property taxes. I’m so so glad we got to kick off this series with you all, so thank you.
Lauren: Thank you for the opportunity to share our work with y’all and to your listeners.
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