Stolen land, stolen legacy
By Starla Vaughns Cherin
Thelma Joyce Taylor Irving, 86, the last surviving child of David Irving, feels the pain of having their family legacy, the 110 acres her father purchased in 1917, sold without the consent of all the heirs. Other Irving heirs sold their interest in the land to Richard Clark. She is the last person holding out with a check for her portion of the inheritance.
Father Irving died in 1959 and although his original deed mentioned the land being owned by his heirs – 13 children, Irving died without a will specifying what he wanted his heirs to do with the land. Even without the will the heirs did keep the property. Six sons maintained the estate. Everything was fine until the last son died in 2001.
The earliest deed book number was from Artise L. Irving, wife of Robert B. Irving, Sr., who sold 12.5 percent interest in the land her husband’s father purchased.
Sister Minnie Lee Irving Butler sold her 25 percent interest. Andrew Irving sold his 12.5 percent interest. William T. Irving, Sr. died and Ella Louise Irving sold 12.5 percent.
By 2008 Clark owned 69.7 percent of the David Irving legacy of 110 acres. These transactions were made while Mrs. Thelma Joyce Irving Taylor continued to pay taxes on the land from 2001 to 2014.
When she and her children attended the last hearing in April they didn’t know the purpose of the meeting was to distribute the money from the sold property. As the hearing progressed, Thelma Irving Taylor demanded loudly, “How can you sell our land when I have been paying the taxes!”
Special Referee for the Court of Common Pleas, Kathy O. Rushton, said according to Taylor, “Well, you won’t have to pay taxes next year.”
Before he died Clark hired Attorney Christian Spradley of the Moore Taylor Law Firm to sell the property so he could retrieve the money he’d spent buying the shares of interest from the heirs. According to Saluda County law, that ended the real estate deal for his family. He asked Spradley to do a partition sale.
Partition by sale constitutes a forced sale of the land, followed by division of the profits thus realized among the tenants. Generally, the court is supposed to order a partition sale only if the land cannot be physically divided, although this determination often rests on whether the economic value of the divided pieces is less in the aggregate than the value of the parcel as a single piece.
“If you own interest in land and I say I will give you $5,000 for your interest in land and I do that with five or six different people I own that interest. Mr. Clark bought up interest and realizing he would die soon and wanted to get his money out of it. So we did a partition action,” Spradley says.
In 2010 during the first hearing Thelma Irving Taylor was represented by counsel Attorney Willie Heyward. At that hearing Mr. Clark was still alive and gave testimony and the court took evidence of who owned what percentage of the property. A Guardian Ad Litem was present at the hearing to represent unknown heirs.
Attorney Heyward was al-lowed to question Mr. Clark and review the division of property based on what his client said. Then the case was set to move forward when Heyward filed an appeal to set aside the sale.
“Attorney Heyward attempted to appeal that order which stopped and slowed everything down but the appeal was dismissed because he failed to file an answer on behalf of his clients. Nobody ever owned the whole property and you can’t cut it up because the pieces are so small. It would be different if one person owned 50 acres and another 50 acres then we could split it down the middle but when you have someone who owns 4 or 3 percent and someone owns 40, there is no way to divide it up.
“If you own three acres of land, there is no way you can give that person road frontage. The value of the back part of property and the front is different. Who will get front? Who will get part of the pond and how will you design the right of way to get to the property with so many different owners?” says Spradley.
After this order Heyward attempted to file an appeal at the Court of Appeals level and but there was nothing to argue because he still had not filed an answer from the Irving’s to the order. It took a year for it to be dismissed and sent back to circuit court again.
Then the Special Referee requested a new appraisal because it had taken so long since it was first appraised. The property values were higher in 2010 for the first appraisal but after the economic downturn property values suffered. “We redid every, sending out notices that you have a right to buy everyone out. We wanted to go back and give everyone the option to buy it at the current price that is lower than in 2010. No one came forward,” says Spradley.
At this point the only way Thelma Joyce Irving Taylor’s family could have stopped the sale was to buy out Mr. Clark’s interest.
The April 24, 2014 hearing was the only hearing the Irving’s attended. According to Spradley Attorney Hayward was in possession of all the orders. “The notices for all the hearings were sent to Attorney Heyward. The notices went to the same exact address. It would be a breach of my duty to my client if I represented someone and they didn’t have notice of a hearing,” says Spradley.
Spradley says for six years notices were sent to heir Bennie Butler at the same address. One of the notices at the end of the case came back marked “no mail receptical.” When Butler called to ask where do I pick up my check, when asked his address, he gave the same one, so Spradley said you have to come to the office and pick it up. Butler along with his aunt Thelma Taylor Irving were the last hold outs to the sale. Butler picked up his check last week.
According to the National Council of Commissioners on Uniform State Law, the Uniform Partition of Heirs Property Act addresses a problem faced by many middle to low- income families who own real property: dispossession of their land through a forced sale.
“For many of these families, real estate is their single most valuable asset. Rural African-American families have been hit especially hard. Following the civil war, African-Americans acquired between sixteen and nineteen million acres of agricultural land by 1920. Today, African- Americans retain only about seven million acres of that land.
“Most higher-income families engage in sophisticated estate planning, ensuring a smooth transfer of wealth to the next generation. In contrast, lower-income landowners are more likely to use a simple will to divide property among children, or to die intestate. Unless a landowner specifies a different form of ownership in an estate plan, the owner’s descendants will inherit real estate as tenants-in-common under state property statutes.
“A tenant-in-common may sell his or her interest without the consent of the co-tenants, making it easy for non-family members to acquire an interest in the property. This condition has allowed many real estate speculators to acquire heir’s property at a price below its fair market value, depleting a family’s wealth in the process.
“In a tenancy-in-common, any co-tenant may file an action with a court to partition the property. In resolving a partition action, the court has two main remedies available: partition-in-kind or partition-by-sale. A partition-in-kind physically divides the property into shares of proportional value and gives each co-tenant full ownership of an individual share. However, if it is not possible to divide the property equitably, the court will often order a partition-by-sale, whereby the property is sold as a single parcel and the cash distributed to the co-tenants in proportion to their ownership.”
In the order for partition sale of the Irving property in addition to Clark’s wife Bobby Jo, there are 22 Irving heir co-owners listed. Each co-owner receives a sum for their interest in the land.
The Uniform Partition of Heirs Property Act (UPHPA) helps to solve the problem while preserving a co-tenant’s right to sell his or her share of property. It is important to note that the act only applies to heirs’ property – one or more co-tenants must have received his or her property interest from a relative – and only when there is no written agreement governing partition among the owners. If both of those conditions exist, the act requires certain protections when a co-tenant files for a partition order:
1. The co-tenant requesting the partition must give notice to all of the other co-tenants.
2. The court must order an independent appraisal to determine the property’s fair market value as a single parcel. If any co-tenant objects to the appraised value, the court must hold a hearing to consider other evidence.
3. Any co-tenant (except the co-tenant(s) requesting partition-by-sale) may buy the interest of the co-tenant seeking partition for a proportional share of the court-determined fair market value. The co-tenants have 45 days to exercise their right of first refusal, and if exercised, another 60 days in which to arrange for financing.
South Carolina State Senator Robert W. Hayes has unsuccessfully introduced the Uniform Partition of Heirs Property Act in the South Carolina Senate, and said the bill will be re-introduced in January 2015.
So far only Montana, Nevada and Georgia have adopted the Uniform Partition of Heirs Property Act.