Sam Schott
Private property is at the bedrock of American society, representing personal autonomy, freedom, and prosperity. No property symbolizes these values more strongly than a family residence. For many Americans, their residence is the most valuable asset they own, with home equity accounting for nearly one-third of total household wealth.[1] Moreover, many find their home to exceed its fair market value, having spent their lives, and sometimes even generations, living in these homes. Our legal system has long acknowledged this importance, with even the Constitution bolstering our home rights.[2] Yet owners of “heirs’ properties,” constituting more than 580,000 residential properties in the United States, may be deceptively exposed to legal mechanisms that could result in the forced taking of their prized assets.[3]
“Heirs’ property” is real property that has been passed through intestacy.[4] Each of these heirs owns an undivided fractional interest in the property and the right to use and enjoy the entire property, regardless of the size of their share of ownership.[5] Among the rights that these co-owners possess is the right to partition: a form of legal action that terminates the shared interest in the property, most often through a forced sale of the property.[6] For more than a century, these partitioning laws have created significant negative externalities for owners of heirs’ property due to the lack of clear title and the danger of losing the land. Moreover, when these partition sales do occur, they result in sales at significant discounts from the fair market value, resulting in minimal recovery for co-owners.[7] These consequences have made partition actions particularly exploitable for predatory investors, who only need to acquire a single fractional interest of heirs’ property to use it to force a sale and acquire the property at a discount.[8] This practice has helped contribute to significant losses of generational land, disproportionately impacting minorities and low-income communities, and especially those whose residences are potentially prime tourist destinations.[9]
To deter heirs’ property acquisition and protect families in possession of heirs’ properties, the Uniform Law Commission enacted the Uniform Partition of Heirs Property Act (“UPHPA”) in 2010. The UPHPA reformed the partition process by (1) providing non-partitioning cotenants the opportunity to buy out the other cotenant, (2) strengthening the court’s preference for partitioning in kind, and (3) suggesting “open market sale” procedures to increase sales value.[10] Today, twenty-six states have enacted the UPHPA, five more have introduced it, and some have even expanded upon it.[11] In these states, residents have observed a noticeable decline in investor-driven partitions.[12]
Gelinas LLC v. Hayes,[13] is helpful to illustrate the progress of heirs’ property laws. In Gelinas, the New York Supreme Court for Bronx County evaluated whether a real estate developer’s partition action should be subject to traditional principles or the special protections of New York’s Uniform Partition Heirs Property Act.[14] The defendant occupied this residence for over fifty years with her unmarried partner as joint tenants, until the partner passed away intestate, leaving 50% interest in the property to be split between the partner’s distant niece and nephew.[15] In 2021, a developer acquired the niece and nephew’s 50% interest in the property for a total of $75,000, despite the home being appraised at $805,000.[16] Shortly thereafter, it filed a partition action to sell the home at auction.[17] The defendant, an 80-year-old woman who continued to live in the home alone, challenged this action and attempted to exercise her rights as provided under the Heirs Act.[18] After considering the defendant’s connection and use of the property, the niece and nephew’s weak connection to the property, and the haste of the developer’s partition action, the Court determined that this partition action fell under the Heirs Act.[19] Further, the Court noted that, although New York’s amendments to the Heirs Act were yet to go into effect, the developer would not even have standing to initiate a partition action in this matter, as the residence was not inherited directly from a person who was a co-tenant prior to the house becoming an heirs’ property.[20]
Gelinas provides a fantastic benchmark for the progress of heirs’ property law, as it demonstrates how this case would be resolved under New York’s original heirs’ property law, while also distinguishing how the result would differ under traditional principles and the state’s expanded heirs’ property laws.[21] Under the original partitioning laws, this matter would have inevitably proceeded with the home being sold at auction, becoming another statistic in a century-long trend of land loss.[22] While the defendant was fortunate to avoid this outcome when she prevailed in the case, it is difficult to consider this a victory as a partition action will move forward, only with additional guardrails.[23] If the defendant were to exercise her right to buyout the developer of its interest in the property, it would likely cost the fair market value of the developer’s interest in the property, approximately $400,000.[24] Considering the developer only paid $75,000 to obtain this interest, the standard UPHPA laws leaves significant opportunity for investors to profit from these practices.[25] Further, while it is uncertain whether this particular defendant can bear the cost of buying out a partitioning co-tenant, it is an inadequate remedy for the typical heirs’ property owner, who tends to be property-rich but cash-poor.[26] These considerations emphasize the importance of New York’s amended partitioning laws, which would have outright prohibited the developer from partitioning the land, and potentially even acquiring it to begin with.[27] Thus, while there has been progress made towards reforming our antiquated partitioning laws to prevent these practices, more reform is still needed across all states to make these safeguards widely available to heirs’ property owners.
[1]Briana Sullivan, Wealth of Households: 2023, Current Population Reports, U.S. Census Bureau (2025) https://www2.census.gov/library/publications/2025/demo/p70br-211.pdf
[2] See e.g. U.S. Const. amend. III.; U.S. Const. amend. IV.; U.S. Const. amend. V; U.S. Const. amend. XIV, § 1.
[3] Sean Doolittle, The Lurking Dangers of Heirs’ Property, Boston College L. Sch. (2024) https://lawmagazine.bc.edu/2024/05/the-lurking-dangers-of-heirs-property/
[4] Unif. Partition of Heirs Property Act § 2(5) (Unif. L. Comm’n 2010).
[5] Jon Gorey, Understanding Heirs Property, Lincoln Inst. of Land Pol’y (2025) https://www.lincolninst.edu/publications/land-lines-magazine/articles/understanding-heirs-property/
[6] Partition, Black’s Law Dictionary (2d ed. 1910); Partition in Kind vs. Partition by Sale: What’s the Difference, Baker L. Group (2023) https://jbakerlawgroup.com/partition-in-kind-vs-partition-by-sale-whats-the-difference/
[7] Donna Arzanipour, Enhancing the Uniform Partition of Heirs Property Act: The Need for Broader Use and Essential Modifications, 40 Touro L. Rev. 581, 590 (2025)
[8] Thomas W. Mitchell, Restoring Hope for Heirs Property Owners: The Uniform Partition of Heirs Property Act, Am. Bar Assoc. (2016) https://www.americanbar.org/groups/state_local_government/resources/state-local-law-news/archive/restoring-hope-heirs-property-owners-uniform-partition/
[9] Gorey, supra note 5; Belen Wilson, The Gullach/Geechee Struggle to Preserve Ancestral Lands: Why Heirs’ Property Ownership is Displacing Local Communities Along the Southeastern Shores, Wake Forest L. Rev.: Current Issues Blog (Apr. 1, 2021), https://www.wakeforestlawreview.com/2021/04/the-gullah-geechee-struggle-to-preserve-ancestral-lands-why-heirs-property-ownership-is-displacing-local-communities-along-the-southeastern-shores/; Mitchell, supra note 8 (“Though there once were a very large number of African-Americans who owned property on Hilton Head Island, for example, many of these owners lost their land in the latter half of the twentieth century to real estate speculators and developers as a result of partition sales.”)
[10] Id.
[11] Michael Neal, Matthew Pruitt & John Walsh, The UPHPA and Its Impact, Urban Institute, 4 (2026) https://www.urban.org/sites/default/files/2026-04/Final_The_UPHPA_and_Its_Impact.pdf
[12] Id.
[13] 85 Misc. 3d 1012 (N.Y. Sup. Ct. 2024)
[14] Id. at 1013.
[15] Id. at 1014–15.
[16] Id.
[17] Id. at 1025, 1030.
[18] Id. at 1015.
[19] Id. at 1016.
[20] Id. at 1028–29.
[21] Id. at 1019–20.
[22] Id. Had the partition of this residence proceeded under traditional principles as intended, the residence was to be sold at auction on July 6, 2023.
[23] Id. at 1016.
[24] Id.
[25] Id.
[26] Mia Robertson, Property Rich, Justice Poor: Heirs’ Property and Involuntary Land Loss, Access to Justice Lab (2026) https://a2jlab.org/property-rich-justice-poor-heirs-property-and-involuntary-land-loss/
[27] 85 Misc. 3d at 1028–29.