Georgia changes to partition statute enshrine sentimentality in law

It is a time-honored rule of common law that parties are not usually compensated for emotional loss, and the rule is only overcome by statute, as in cases of severe emotional distress. Likewise, our land title law has so evolved to favor marketable, fee simple title, not family or emotional ties to land. 

When it passed the new Uniform Partition of Heirs Property Act, effective June, 2013, the Georgia legislature bucked the common law and enshrined certain "subjective factors" for judges to consider when determining how to partition "heirs property" land. 

I will not address the motivation for the new law. It is done better here in the Georgia Bar Journal and here in a College of William and Mary law review article. Suffice it to say, there are millions of acres in the South that are fractionally owned in such a way that the costs of consolidating the title are prohibitive for their owners. Ethnic minority owners of land are particularly affected because of historical economic hardship. 

The new partition statute, however, may go too far in its attempts to correct these ills. In attempting to honor the importance and sentiment tied to land ownership, the law requires judges in partition actions to consider, among other factors, "whether the land has ancestral or sentimental value to heirs; whether a co-tenant would be harmed if not allowed to continue to use the property in the same manner following the conclusion of the action; . . . and other factors relevant to the court." 

Adding such factors will make it difficult for attorneys and land owners or investors to know how a partition will turn out and is likely to have a chilling effect on important legal work to consolidate land title.

Economically, land is a capital resource, and society gains when it is put to its highest and most valuable use. Placing sentimental, subjective considerations into our land partition law may have the perverse effect of raising the costs to consolidation and efficient use of land and, thus, stunt economic growth in the region.