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live far away from the family land.
9
These co-owners are often more willing to sell
their share than financially secure co-owners who use the family land regularly.
10
For example, Wardlaw’s great-uncle—who was financially insecure—used his
share as collateral for a $100 loan, which the lender owned after the loan was not
repaid.
11
Once a developer buys a share in heirs’ property, the developer can
request the division of the land usually by sale.
12
Developers, like Timberland Services, use their legal expertise to buy heirs’
property at a reduced price.
13
Often when a court
sells heirs’ property, the developer who requested division purchases the entire
property at a reduced price.
14
For instance, Wardlaw’s family lacked the financial
resources to bid on their property, and Timberland Services bought it for less than
the property’s value.
15
The Wardlaw family, unable to avoid a sale, lost the wealth
embedded in the property as well as generations of family history.
16
AB 633 aims to protect families, like the Wardlaw family, from the loss of
both familial land and the wealth embedded in the property.
17
AB 633 reinstates a
legislative and judicial preference for partition in kind, increases notification
requirements, and adds a buy-out provision to increase protections for co-owners
of heirs’ property.
18
While AB 633 increases protections for co-owners of heirs’
property, it would be more effective with improved notification and an option to
request mediation among the parties.
19
II. LEGAL BACKGROUND
Partition law has changed little since its creation.
20
However, the courts’
application has changed in recent decades.
21
Section A discusses the process of
9. Faith R. Rivers, The Public Trust Debate: Implications for Heirs’ Property Along the Gullah Coast, 15
SE. ENV’T L.J. 147, 153 (Fall 2006).
10. How Jacob Loud’s Land Was Lost, supra note 1.
11. Id. (discussing Wardlaw’s great-uncle’s transfer of his share without the knowledge of the other co-
owners).
12. Mitchell, supra note 3.
13. How Jacob Loud’s Land Was Lost, supra note 1 (“At some point, property developers realized that
there was this flaw in the heirs’ property system, this incredible way for them to get these newly valuable
properties for pennies on the dollar.”).
14. Mitchell, supra note 3.
15. How Jacob Loud’s Land Was Lost, supra note 1 (“[N]o one in Fred Wardlaw’s family had enough
money to put up a bid.”).
16. Id. (“You lost everything. They tore down my grandfather’s house.”).
17. AB 633, 2021 Leg., 2021–2022 Sess. (Cal. 2021); Hearing on AB 633 Before the Assemb. Jud. Comm.,
2021 Leg., 2020–2021 Sess. (Cal. 2021) [hereinafter 633 Assemb. Jud. Hearing] (on file with the University of
the Pacific Law Review); How Jacob Loud’s Land Was Lost, supra note 1.
18. AB 633, 2021 Leg., 2021–2022 Sess. (Cal. 2021).
19. Id.
20. See Mitchell, supra note 3 (summarizing the history and case law surrounding partition).
21. Id. (discussing the development of partition law from English law to a modern preference for partition
by sale).