Virginia CZM Program: 2009 Coastal Grant Project Description and Final Summary

Project Task:

95.01

Grantee:

Middle Peninsula Planning District Commission

Project Title:

Failing Septic Systems and Heir Property: Legal Remedies

Project Description as Proposed:

This project proposes to expand and complement the Section 309 Land & Water Quality Protection strategy by focusing legal tools needed to address failing septic systems associated with “heir property ownership.”    This type of land ownership has persisted for centuries.  Water quality degradation associated with heir property ownership from failing septic systems exists for decades with no public policy strategy present to address the source of the impairment.      

After the Civil War across much of the south, including the Middle Peninsula of Virginia, many African Americans were deeded land by others or purchased land for themselves. Because of laws against teaching slaves to read or write, and later Jim Crow laws restricting access to legal assistance, many landowners did not leave written wills. A tradition of verbal bequeaths remains common today in the African American community. However, verbal bequests are not generally recognized by state law, resulting in what is called heir property – land held in common by the descendants (or heirs) of someone who has died without a probated will.  While many co-owners enjoy the flexibility heir property offers and the sense of community it fosters, the title to such property is usually considered clouded. 

There are many misconceptions surrounding heir property and confusion often occurs about who owns what. It is important that heirs are aware of risks involved in heir property, know their rights as landowners, and take the proper steps to protect their land and keep people living in safe and sanitary conditions. Without addressing the question of legal ownership, failing septic systems will erupt sewage continuously with no easy remedy.  MPPDC has grant and loan funding available to help fix failing septic systems, but cannot expend these resources unless clear ownership and title to the land can be established.  Every single heir has a right to enjoy the benefits of landownership, but they also have the responsibility to ensure the land is cared for and the threat to public health is minimized.  Heir property is the source of many legal and bureaucratic problems, yet remains an important resource for many families. It is important that families are aware of the dangers of keeping land in this pattern of ownership and what measures they can take to protect themselves. 

This project proposes to partner with the National Sea Grant Law Center (SGLC) to address these legal research and education needs.  The Center, working with law students in Virginia, will develop two legal white papers analyzing (1) heir property ownership issues in general and (2) various legal remedies to failing septic tanks located on heir property.  Approximately 500 hours of law student research will be required. MPPDC anticipates providing the National Sea Grant Law Center with a real life, failing septic system case study so that the white paper will be based on actual facts with real water quality concerns.    

With input from MPPDC, the SGLC will conduct a state-wide search for two law student researchers. Upon selection of the two legal research candidates (which could be from different law schools in Virginia), the Law Center anticipates working with the law students through their respective institutional externship programs. The NSGLC will oversee the student’s research, coordinating weekly conference calls with the law students and MPPDC, and draft the final white papers. The final report will be used to inform local Virginia Department of Health staff, local policymakers, housing services, community planners, and economic development coordinators to become more aware of heir property and the issues involved.  The final report will recommend various solutions to heir ownership issues.

Federal Funding:

$7,091.00

Project Contact:

Lewie Lawrence; (804) 758-2311; llawrence@mppdc.com

Project Status:

2/1/2012 - 9/30/2012; Project Completed

Final Product Received:

Failing Septic Systems and Heirs' Property: Financial Lending Challenges and Possible Solutions (PDF)

Project Summary Provided by Grantee:

Under the executed research services agreement dated 3/9/12 with the University of Mississippi- National Sea Grant Law Center, Stephanie Showalter Otts, J.D.,M.S.E.L and Brian R. Giaquinto, J.D. Candidate, 2013 Liberty University School Of Law completed the research project focusing on Heir property ownership issues and failing septic systems.  

Heirs’ property is a little-known form of property ownership that arises when land is passed down through the generations without written wills.  Heirs’ property is a more common form of ownership in low-income families due to lack of knowledge regarding the importance of wills and lack of access to affordable legal assistance.  Depending on the size of the family, there may be dozens or even hundreds of individuals with a legal interest in the property.  Because of the lack of documentation regarding property transfers, it is difficult for individuals living on heirs’ property to prove they are the rightful owners. Resolving an heir’s property situation to establish clear ownership is not easy, but there are a variety of options available.  Under this project, several traditional solutions have been offered to clear a title.  These options are both time-consuming and expensive legal processes:  Quitclaim deeds; Quiet title actions; and/or Partition Sales.    Virginia law permits individuals who have inherited land from someone who died without a will to file an “Heirship Affidavit” with the county circuit court. In some situations, this documentation may be enough to establish that the homeowner is the true owner of the property. Another alternative, albeit one that would require additional study and legislative action provides hopefully the best solution.  

MPPDC could seek a slight modification of the onsite septic repair loan program to a property tax assessed financing program modeled after Virginia’s Property Assessed Clean Energy (PACE) Program. PACE financing helps private property owners avoid the high upfront costs associated with costly energy improvements. To secure the loan, the local government places a lien against the property where the improvements are being installed. The loan is then repaid to the local government through an incremental increase on the participating owner’s property tax bill, often at a very low interest rate.  Septic repair could be included as an eligible improvement. MPPDC staff is currently working with Virginia Delegate Keith Hodges to consider introducing legislation to create a Middle Peninsula Onsite Septic Repair Property Tax Assessed Financing Program to allow failing septic systems on heir property. 


Disclaimer: This project summary provides the federal dollars initially awarded to the grantee. Due to underexpenditure or reprogramming of grant funds, this figure may change. For more information on the allocation of coastal grant funds, please contact Laura McKay, Virginia Coastal Program Manager, at 804.698.4323 or email: Laura.McKay@deq.virginia.gov

A more detailed Scope of Work for this project is available. Please direct your request for a copy to Virginia.Witmer@deq.virginia.gov

 

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Virginia Department of
Environmental Quality
P.O. Box 1105
Richmond, VA 23218
(804) 698-4000


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