Equity Erased: NC’s Partition Law Easily Exploited

North Carolina’s partition law allows any owner—whether it’s through a 50 percent interest or 1/50th—to force a sale, and an investor need only buy one relative’s share.

Part III of a series by Asheville Watchdog –

North Carolina’s partition law dates to the period following the Civil War.

Emancipated Blacks in the South acquired millions of acres of farmland as well as residential properties that have since passed to heirs and become prime opportunities for investors.

Land most susceptible to abuses is heirs’ property that is passed from one generation to the next, usually intestate, without a will. Many Americans, including an estimated three out of four Blacks, lack a will, in which case ownership goes to descendants and their descendants when they die. As a result, it’s not uncommon for some properties to be owned by dozens of relatives.

Most co-owners of a property, legally referred to as co-tenants, assume it can only be sold if everyone agrees. But North Carolina’s partition law allows any owner—whether it’s through a 50 percent interest or 1/50th—to force a sale, and an investor need only buy one relative’s share.

About 500 partition cases are filed each year in North Carolina, according to state court statistics. No breakdown is available for how many involve heirs’ property.

Partition sales have become one of the greatest sources of land loss in the South. In Hilton Head, South Carolina, for example, speculators have used the law to pry valuable land from Black families for development.

Recognizing widespread abuse of the partition law, the Uniform Law Commission, a lawyer group that promotes model laws to states, developed the Uniform Partition of Heirs Property Act in 2010.

Rep. Brian Turner

Nineteen states have passed it, including five in the South. Rep. Brian Turner, a Buncombe County Democrat, co-sponsored a bill to adopt the Uniform Act this year in the North Carolina General Assembly. It passed the House in May but is still pending in the Senate.

“You’ve got developers who are looking to secure land below potentially market cost,” said Turner, a commercial real estate agent. They buy an interest in a property “and all of a sudden the [other owners] are put in a position where they’re forced to sell it, really without a lot of recourse.”

The law has been used to buy farmland in eastern North Carolina but also residential properties in Buncombe and other western counties at below market prices.

Rep. John Ager

“The problem,” said Rep. John Ager, a Buncombe Democrat who signed onto the bill, “is that property is inherited down the line through relatives. Those relatives move away, have no particular interest in the property or connection to it.”

Developers research the properties and “pick off a relative for some minimal amount of money,” Ager said, “and then ask the court for a partition.”

Cash deal in a Kmart parking lot

Robert Perry Tucker II used the partition law to buy Mary Hobart’s East Asheville house in 2016. Hobart, who had paid the mortgage and taxes for nine years, came away with $2,500, and a Tucker company got the property.

It began with a mortgage foreclosure. Hobart said she came home to find a business card from Lisa Roberts as “senior housing coordinator” of Home Advocates and Limitless Outreach, her business. “Please call me as soon as possible,” Roberts wrote on the back.

Hobart had recently discovered a major problem with her ownership. Another person had inherited 25 percent from a previous owner years earlier, court records show.

Hobart’s predicament became Tucker’s opportunity. His company bought the other owner’s interest for $10,000, according to the deed, and then filed a partition action against Hobart and her mortgage holder. Hobart said Tucker came to her house, and to her job at a lemonade stand at the Asheville Outlets.

“Every time it was like, ‘You’re a squatter here,’ ” she said. “He said I was in trouble because I was living in a foreclosed home.”

Hobart’s home hadn’t been foreclosed on, but she said she came to believe from Tucker that her ownership “was a mess” and that “there would be a lot more owed on it than what I already paid.” She sold her 75 percent to his company for $2,500, signing the deed, she said, on the hood of a car in a Kmart parking lot. Henry notarized it, and Tucker paid her in cash, counting out 25 hundred-dollar bills, she said.

Henry said he did not recall the specific signing or location but has notarized deeds in parking lots. “I’ve met people in all kinds of odd places to do closings,” he said.

Asked why Hobart received so little for her interest, especially compared to the other owner, Henry said, “I can’t tell you that.”

Henry said he would ask Tucker about Hobart’s claim that Tucker called her a squatter and in trouble but then declined further comment.

“I am not involved in negotiating any of these deals,” Henry said, describing his role as “clerical.”

Tucker let Hobart and her children remain in the house while they looked for a place to rent. Henry filed a second partition action naming the mortgage holder. At a partition sale, another Tucker company bought the property for $40,000 and sold it two months later for $89,000.

Frances Roland Conley-Green
Frances Roland Conley-Green

Forced out

Frances Roland Conley-Green had been living in her deceased mother’s house near downtown Asheville, and a property tax bill was overdue. Green said she took out a loan and paid it. End of story, so she thought.

Three days earlier, her siblings signed over their ownership interests to a Tucker company. Green said Roberts came to the house and said “that the property had been sold and I needed to sign the paper work [sic] because my siblings had already signed to sell due to unpaid taxes.” Green refused, and Tucker’s company filed a partition action against her and her husband.

In response, Green alleged that Roberts had told her siblings “the house would be auctioned on the court house [sic] steps, with no pay out to family. Due to taxes not being paid.”

Once Green paid the tax bill, there was no longer a threat of foreclosure, but even if there had been, the family would have received the equity after the taxes and costs were paid.

Green and her husband went to court, but a judge ruled Tucker’s company was entitled to a partition sale. An auction sign went up in the yard. With an attorney, the Greens negotiated a settlement. All told, Tucker’s company paid the family $150,000 for the house and sold it a year later for $277,000, property records show.

“We’d been there since ‘71,” Green said. “I had to pack up everything from the top to the bottom, clean it … I get anxiety attacks thinking about it.”

Asked if he knew that Green and others felt victimized by Tucker’s partition actions, Henry said, “Absolutely not.”

“I’m sorry to hear it,” he said.

Tasha and Kevin D’Ascanio
Tasha and Kevin D’Ascanio

A Box Full of Cash and an Empty Promise

Most homeowners could never fathom strangers acquiring a portion of their property, obtaining a court order to sell it without their consent and depriving them of the value they’d accrued over years or decades of ownership.

There are legal protections against that, Tasha D’Ascanio thought—until it happened to her.

D’Ascanio and her uncle, Derrell Ray Pettit Jr., had each inherited half of a one-acre tract just outside West Asheville, with a tax value of $123,600, that had been home to three generations of their family.

But investors, including Robert Perry Tucker II, acquired the land and through an exploitive but legal process cut the family out of its fortune, an Asheville Watchdog investigation found. In the end, D’Ascanio got nothing, and Pettit ended up homeless for five months.

“I don’t know what happened,” D’Ascanio, 41, said. “I just know it’s heartbreaking that someone could come in and take away something like that from you.”

Tucker, an Asheville attorney, declined repeated requests for comment.

Rep. Brian Turner, a Buncombe County Democrat, said what happened to D’Ascanio, “I would liken it to a scam … If this is legal, it shouldn’t be.”

‘How’s that possible?’

The story of how the family lost its inheritance involves a box of cash, an empty promise and a flawed and easily exploited law that has stripped property and wealth from other mostly poor property owners across the country, as Asheville Watchdog previously reported. Attempts to reform the law, known as a partition or forced sale, with one less prone to abuse have stalled in North Carolina after passing in 19 other states.

Investors use partition actions to buy properties co-owned by multiple people, usually heirs in a family, at below market value. The law allows any owner to ask the courts to order a property divided or sold, including by public auction.

Partition actions are meant to resolve disputes when one owner of a property wants to sell and the others don’t or can’t agree on a price. Investors find heirs willing to sell, acquire their partial interest, and ask the courts to force a sale of the entire property.

In D’Ascanio’s case, her uncle said he agreed to sell his half of the property to an investor, believing he could buy it back. But the investor sold it to two others, who took D’Ascanio and her husband to court under the partition law, forced a sale by public auction, and bought the entire parcel for $2,000. After taxes and fees, D’Ascanio’s share came to $0.

“I don’t understand that … How’s that possible?” D’Ascanio said. “How is that legal?”

Childhood memories

D’Ascanio’s property, originally owned by her grandparents and on land prime for development, had been in her family for more than 50 years.

“On Christmas and Thanksgiving day, grandma and mom always made duck, our favorite,” D’Ascanio said. “We ate sandwiches at the picnic tables, played in the creek, climbed trees and fed the pigs and chickens.”

Pettit, her uncle, grew up in one of four trailers on the property and never left.

“I could go and walk the woods in the middle of the night and take you all over the place,” said Pettit, 44. After two deaths in the family, Pettit’s father in 2017 and his sister, D’Ascanio’s mother, in 2018, the property passed to Pettit and his niece.

D’Ascanio, the part-time manager and cook at the Rise ‘n Shine Café in North Asheville, did her best to handle the expenses. Money she had saved to buy a car for her 16-year-old went toward her mother’s funeral. She couldn’t afford a tombstone.

D’Ascanio was tapped out, her uncle unemployed, and they owed $1,615 in overdue property taxes.

The county foreclosed on the property in 2018, putting the land up for auction. And that’s what brought the investors in. Bidders included an entity represented by Tucker; Michael Kutyana of Asheville; and a company registered to Linda and William Fred Alexander of Black Mountain. All had bought and sold real estate around Buncombe County.

D’Ascanio followed the auction, watching bids reach $61,000. She was entitled to half, which she said she planned to split with her siblings. But then the auction abruptly ended. “It was almost finished. I was just waiting for a phone call from the courthouse,” D’Ascanio said. “It all just disappeared.”

By law, anyone can pay the tax debt on a property, which stops the foreclosure proceedings. And that’s what happened. The auction commissioner, James Ellis, said a lawyer named Peter R. Henry of Arden paid the tax bill and costs.

D’Ascanio had never heard of Henry and had no idea that as a result of deeds recorded the day before, her uncle’s half of the property now belonged to investors. And her half was about to become worthless.

The investors, Tucker, Kutyana, and the Alexanders, did not respond to repeated requests for comment about their roles in the transactions. Henry, who is Tucker’s lawyer and had prepared deeds for the Alexanders in previous deals, said he would look into Asheville Watchdog’s questions and then declined to comment.

Derrell Ray Pettit Jr. and his girlfriend, April Ball.
Derrell Ray Pettit Jr. and his girlfriend, April Ball.

Dinner and dessert: a box of cash

Exploitation of the partition law often begins with an investor obtaining a partial interest in a property from an unsavvy or financially needy owner for less than market value. In D’Ascanio’s case, that person was her uncle.

While the tax foreclosure auction was still under way, William Alexander showed up at Pettit’s trailer, Pettit told Asheville Watchdog. Pettit said he had no money but desperately wanted to keep the family land, the only place he had ever lived.

Over dinner at the Bonfire Barbecue in Asheville, Pettit said Alexander presented a cardboard box full of cash—$4,400 in mostly small bills—for Pettit’s interest in the property.

The amount was significantly less than market value or what Pettit would have received from the tax auction. But, according to Pettit, Alexander told him he could buy the property back in a year. Pettit said he recalled thinking, “This man’s going to help me … from losing my land.”

The day after the dinner, Pettit said, Alexander and his wife picked him up to sign and notarize documents. But there was a problem: Pettit said he couldn’t find his driver’s license, which any notary would require. The Alexanders, Pettit said, drove him to a Division of Motor Vehicles office, where he obtained a duplicate copy, and then to a UPS Store where he signed a deed to Alexander’s company.

“I said, OK, where’s the [document] that says I’m allowed to get it back?” Pettit said. Linda Alexander used a computer at the UPS Store to “type it up,” Pettit said.

A notarized “Option to Purchase,” signed by William Alexander, gave Pettit a year to buy back his share for $4,400 “plus any and all costs” Alexander incurred. Pettit said he received only the $4,400 in cash; the deed indicates a sale price of $11,000.

Pettit said he never had a chance to buy his land back. The same day the deed was recorded, Alexander’s company sold the interest it just bought from Pettit to a Tucker company and Kutyana for $55,000, records indicate. And the next day, Tucker’s company and Kutyana filed a partition action against D’Ascanio and her husband, the owners of the other half, asking the court to order the entire property to be sold.

Four months later, through what University of North Carolina law professor Rick Su called exploitation of the partition law, Tucker’s company and Kutyana owned the whole parcel, and D’Ascanio came away with nothing for her family land.

A rigged system

Courts often order partition sales by public auction, and the way they’re advertised and conducted virtually guarantees a below-market price, according to research by Thomas Mitchell, a law professor at Texas A&M University and principal author of the Uniform Partition of Heirs Property Act, a proposed law for states to help prevent abuses.

Family members who want to keep a property have limited options. Banks typically decline to accept fractional interests in properties as collateral for loans. Many heirs are cash poor, and as Mitchell puts it, unable “to outbid even a low-ball bidder.”

Advertising of the auctions typically consists of a legal description of the property in a newspaper—the weekly Weaverville Tribune for Tasha D’Ascanio’s land. Many potential bidders do not participate in partition auctions, Mitchell found, because they “never find out about such sales in the first place.”

Some states set a minimum price that must be met. Not North Carolina.

How Partitions Work

Partition cases are generally handled by the clerks of court. Once an owner files a partition request, the other owners are notified through a summons and informed that they may seek legal help. A court clerk holds a hearing to determine whether to divide or sell the property.

The law gives preference to division. Mitchell found in his review of partition cases nationwide that a forced sale of the entire property is considered extreme, but courts routinely order such sales, accepting the investor’s argument that physical division would result in a lower return for the owners than selling the property as a whole.

D’Ascanio said she couldn’t afford a lawyer and didn’t attend the hearing. The court clerk assigned to her case, Johanna Finkelstein, heard only from Tucker’s company and Kutyana, who persuaded Finkelstein that dividing the land was “not practical without destroying the value,” a court order states.

Once a partition request is approved, the clerk appoints commissioners—three if the property is to be physically divided, or typically one if a sale is ordered. In a partition sale, the role of a commissioner—often a local Realtor, property appraiser or attorney—is “to get the highest and fairest value for the property,” Finkelstein said in an interview.

The procedural rules for North Carolina clerks handling partition cases say that commissioners appointed to divide a property must be “disinterested” and have “no conflict of interest, either personal or financial, or no relationship with any party, potential witness, or person who stands to benefit from the proposed transactions.” But there are no rules on conflicts of interest for commissioners in partition sales.

Attorney Ile Adaramola
Attorney Ile Adaramola

Finkelstein appointed Asheville attorney Ile Adaramola to conduct the sale in D’Ascanio’s case. At the time, Finkelstein said, she typically chose a commissioner based on recommendations from the parties involved, a permissible practice under court clerk procedures.

Adaramola already had been the sale commissioner in three other partition actions by Tucker entities, all resulting in his companies buying the properties as the high bidder, records show. In two of those, Henry had requested Adaramola when another commissioner withdrew.

Finkelstein said she did not know when she appointed Adaramola in D’Ascanio’s case that Adaramola was at the same time acting as Henry’s monitor in a 2016 North Carolina State Bar disciplinary action against him.

Adaramola was meeting with Henry monthly and overseeing his communication with clients as part of a three-year monitoring agreement the Bar required for Henry to avoid a suspension of his license to practice law.

“One thing that I do now,” Finkelstein said, “is I pick the commissioner and other people who get appointed in these matters to try and avoid any real or appearance of a conflict of interest.”

Becky Tin contributed to this report.

To be continued…

Read Part I: Equity Erased – Real estate deals strip elderly and poor people of their homes, land, and inheritances.

Read Part II: Equity Erased – Forced Sales Hurt Heirs, Poor Homeowners.

Read Part IV: Equity Erased: Exploiting the Partition System and Property Owners.

Read Part V: Equity Erased: Buncombe Homeowners Forfeit Years of Equity.

 


Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. Sally Kestin is a Pulitzer Prize-winning investigative reporter. Becky Tin is a retired district court judge and lawyer. Email [email protected].
Asheville Watchdog gratefully acknowledges the assistance of Lawyers for Reporters, a joint project of the Cyrus R. Vance Center for International Justice and the Press Freedom Defense Fund, and the Duke University School of Law’s First Amendment Clinic, with special thanks to Jonathan Ellison, Danielle Siegel, and Zane Martin.