MISSISSIPPI LEGISLATURE

2015 Regular Session

To: Judiciary A

By: Representative Baker

House Bill 711

(As Passed the House)

AN ACT TO AMEND SECTIONS 89-7-31, 89-7-35, 89-7-41 AND 89-8-13, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE DISPOSITION OF PERSONAL PROPERTY OF A TENANT REMAINING ON A LANDLORD'S PREMISES AFTER THE TENANT HAS BEEN REMOVED FROM THE PREMISES; TO BRING FORWARD SECTIONS 89-7-49, 89-7-51, 89-7-55, 89-7-57, 89-7-61 AND 89-7-69, MISSISSIPPI CODE OF 1972, FOR THE PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Section 89-7-31, Mississippi Code of 1972, is amended as follows:

     89-7-31.  (1)  On receiving such affidavit, the county judge, justice court judge, * * *mayor municipal judge, or other officer shall issue a summons, directed to the sheriff or any constable of the county, or the marshal of the * * *city, town, or village wherein municipality in which the premises, or some part thereof, are situated, describing the premises, and commanding him to require the person in possession of the same or claiming the possession thereof, * * *forthwith immediately to remove * * *therefrom from the premises, or to show cause before the justice court judge or other officer, on a day to be named not less than three (3) nor more than five (5) days from the date of the summons, why possession of the premises should not be delivered to the applicant.

     (2)  In addition to other information required for the summons, the summons shall state:  "At the hearing, a judge will determine if the landlord is granted exclusive possession of the premises.  If the judge grants possession of the premises to the landlord and you do not remove your property, including any manufactured home, from the premises before the date and time ordered by the judge, then the landlord may dispose of such property without any further legal action."

     SECTION 2.  Section 89-7-35, Mississippi Code of 1972, is amended as follows:

     89-7-35.  (1)  If, at the time appointed, it appears that the summons has been duly served, and if sufficient cause * * *be is not shown to the contrary, the magistrate shall issue his warrant to the sheriff or any constable of the county, or to a marshal of the * * *city, town, or village where municipality in which the premises, or some part thereof, are situated, commanding him to remove all persons from the premises, and to put the applicant into full possession thereof.

     (2)  If the summons complied with the requirements of Section 89-7-31(2) and if the tenant has failed to remove any of tenant's property, including any manufactured home, from the premises, then, provided that the judge has not made some other finding regarding the disposition of any property in the vacated premises, such property shall be deemed abandoned and may be disposed of by the landlord without further notice or obligation to the tenant.

     SECTION 3.  Section 89-7-41, Mississippi Code of 1972, is amended as follows:

     89-7-41.  (1)  If the decision * * *be is in favor of the landlord or other person claiming the possession of the premises, the magistrate shall issue his warrant to the sheriff, constable, or other officer, commanding him * * *forthwith immediately to put such landlord or other person into possession of the premises, and to levy the costs of the proceedings of the goods and chattels, lands and tenements, of the tenant or person in possession of the premises who shall have controverted the right of the landlord or other person.

     (2)  If the summons complied with the requirements of Section 89-7-31(2) and if the tenant has failed to remove any of tenant's property, including any manufactured home, from the premises, then, provided that the judge has not made some other finding regarding the disposition of any property in the vacated premises, such property shall be deemed abandoned and may be disposed of by the landlord without further notice or obligation to the tenant.

     SECTION 4.  Section 89-8-13, Mississippi Code of 1972, is amended as follows:

     89-8-13.  (1)  If there is a material noncompliance by the tenant with the rental agreement or the obligations imposed by Section 89-8-25, the landlord may terminate the tenancy as set out in subsection (3) of this section or resort to any other remedy at law or in equity except as prohibited by this chapter. 

     (2)  If there is a material noncompliance by the landlord with the rental agreement or the obligations imposed by Section 89-8-23, the tenant may terminate the tenancy as set out in subsection (3) of this section or resort to any other remedy at law or in equity except as prohibited by this chapter. 

     (3)  The nonbreaching party may deliver a written notice to the party in breach specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty (30) days after receipt of the notice if the breach is not remedied within a reasonable time not in excess of thirty (30) days; and the rental agreement shall terminate and the tenant shall surrender possession as provided in the notice subject to the following:

          (a)  If the breach is remediable by repairs, the payment of damages, or otherwise, and the breaching party adequately remedies the breach prior to the date specified in the notice, the rental agreement shall not terminate;

          (b)  In the absence of a showing of due care by the breaching party, if substantially the same act or omission which constituted a prior noncompliance of which notice was given recurs within six (6) months, the nonbreaching party may terminate the rental agreement upon at least fourteen (14) days' written notice specifying the breach and the date of termination of the rental agreement;

          (c)  Neither party may terminate for a condition caused by his own deliberate or negligent act or omission or that of a member of his family or other person on the premises with his consent. 

     (4)  If the rental agreement is terminated, the landlord shall return all prepaid and unearned rent and security recoverable by the tenant under Section 89-8-21. 

     (5)  Notwithstanding the provisions of this section or any other provisions of this chapter to the contrary, if the material noncompliance by the tenant is the nonpayment of rent pursuant to the rental agreement, the landlord shall not be required to deliver thirty (30) days' written notice as provided by subsection (3) of this section.  In such event, the landlord may seek removal of the tenant from the premises in the manner and with the notice prescribed by Chapter 7, Title 89, Mississippi Code of 1972.

     (6)  Disposition of personal property, including any manufactured home, of a tenant remaining on the landlord's premises after the tenant has been removed from the premises shall be governed by Section 89-7-35(2) or Section 89-7-41(2).

     SECTION 5.  Section 89-7-49, Mississippi Code of 1972, is brought forward as follows:

     89-7-49.  If a tenant of lands, being in arrear for rent, shall desert the demised premises and leave the same uncultivated or unoccupied, so that a sufficient distress cannot be had to satisfy the arrears of rent, any constable of the county may, at the request of the landlord, and upon due proof by affidavit that the premises have been deserted, leaving rent in arrear, and not sufficient distress thereon, go upon and view the premises, and upon being satisfied that the premises have been so deserted, he shall affix a notice, in writing, upon a conspicuous part of the premises, stating what day he will return to take a second view thereof, not less than five (5) days nor more than fifteen (15) days thereafter, and requiring the tenant then to appear and pay the rent due.  At the time specified in the notice the constable shall again view the premises, and if, upon second view, the tenant shall not pay the rent due, or there shall not be sufficient distress upon the premises, then the justice court may put the landlord in possession of the premises, and the lease thereof to such tenant shall become void.  The tenant may appeal to the circuit court from the proceedings of the justice court at any time within thirty (30) days after possession delivered, by serving notice in writing thereof upon the landlord, and by giving bond, with sufficient sureties, to be approved by the justice court, for the payment to the landlord of the costs of appeal, which may be adjudged against the tenant; and thereupon the justice court shall return the proceedings before him to the next term of the circuit court, and said court shall, at the return term, examine the proceedings in a summary way, and may order restitution to be made to the tenant, with costs of appeal, to be paid by the landlord; or in case of affirming the proceedings, shall award costs against the tenant and sureties in his bond.

     SECTION 6.  Section 89-7-51, Mississippi Code of 1972, is brought forward as follows:

     89-7-51.  (1)  Every lessor of land shall have a lien on the agricultural products of the leased premises, however and by whomsoever produced, to secure the payment of the rent and of money advanced to the tenant, and the fair market value of all advances made by him to his tenant for supplies for the tenant and others for whom he may contract, and for his business carried on upon the leased premises.  This lien shall be paramount to all other liens, claims, or demands upon such products when perfected in accordance with Uniform Commercial Code Article 9 - Secured Transactions (Section 75-9-101, et seq.).  The claim of the lessor for supplies furnished may be enforced in the same manner and under the same circumstances as his claim for rent may be; and all the provisions of law as to attachment for rent and proceedings under it shall be applicable to a claim for supplies furnished, and such attachment may be levied on any goods and chattels liable for rent, as well as on the agricultural products.

     (2)  All articles of personal property, except a stock of merchandise sold in the normal course of business, owned by the lessee of real property and situated on the leased premises shall be subject to a lien in favor of the lessor to secure the payment of rent for such premises as has been contracted to be paid, whether or not then due.  Such lien shall be subject to all prior liens or other security interests perfected according to law.  No such articles of personal property may be removed from the leased premises until such rent is paid except with the written consent of the lessor.  All of the provisions of law as to attachment for rent and proceedings thereunder shall be applicable with reference to the lessor's lien under this subsection.

     SECTION 7.  Section 89-7-55, Mississippi Code of 1972, is brought forward as follows:

     89-7-55.  An attachment or distress may be sued out by the lessor of lands, his executors, administrators, or assigns.  It may be had for rent of the leased premises due and in arrear, or to become due, as the case may be, and for advances made by the landlord or his administrator or executor for supplies for the tenant and others for whom the tenant may have contracted and for his business carried on upon the leased premises.

     SECTION 8.  Section 89-7-57, Mississippi Code of 1972, is brought forward as follows:

     89-7-57.  To obtain such attachment or distress, the party entitled thereto, his agent or attorney, shall make complaint on oath before a justice of the peace, averring the facts which entitle the party seeking it to the remedy; and, if anything be demanded on account of supplies, there shall be filed with the complaint an itemized bill of particulars thereof.  The complainant shall enter into bond with sufficient sureties, payable to the tenant, his executor or administrator, in a penalty equal to double the sum claimed to be due, conditioned to pay all such damages as may be sustained by the obligee by the wrongful suing out of the writ, and all costs that may be awarded against the principal obligor.

     SECTION 9.  Section 89-7-61, Mississippi Code of 1972, is brought forward as follows:

     89-7-61.  When the complaint shall have been made and bond given, and approved by the justice, it shall be his duty to issue a distress warrant or attachment-writ, commanding the seizure of the agricultural products, if any, upon which the party instituting the proceedings shall have claimed a lien, and also commanding the officer to distrain the goods and chattels other than the agricultural products of such tenant, if necessary, and deal with the same as provided by law; the entire seizure and distraint to be of value sufficient to satisfy the sum demanded with interest and costs.

     SECTION 10.  Section 89-7-69, Mississippi Code of 1972, is brought forward as follows:

     89-7-69.  The officer making a distress or seizure shall give notice thereof, with the cause of taking, to the tenant or his representative in person if to be found, or if not found, by leaving such notice at the dwelling house or other conspicuous place on the premises charged with the rent distrained for, and shall forthwith advertise the property distrained or seized for sale as if under execution; and if the tenant or owner of the goods distrained or seized shall not, before the time appointed for the sale, replevy the same by giving bond with sufficient sureties, to be approved by such officer, payable to the plaintiff in the attachment, in double the amount claimed, conditioned for the payment of the sum demanded, with lawful interest for the same, and costs, at the end of three (3) months after making such distress, the officer shall sell the goods and chattels distrained or seized at public sale to the highest bidder for cash, and shall, out of the proceeds of the sale, pay the costs of the proceedings, and shall pay to the plaintiff the amount of his demand, with interest.

     SECTION 11.  This act shall take effect and be in force from and after July 1, 2015.