MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary A
By: Representative Johnson (87th)
AN ACT TO AMEND SECTION 89-7-27, MISSISSIPPI CODE OF 1972, TO REQUIRE A TENANT TO BE REMOVED FROM THE PREMISES WHEN THE TENANT HOLDS OVER WITHOUT THE LANDLORD'S PERMISSION OR DEFAULTS ON HIS OR HER RENT PAYMENT; TO ALLOW NOTICE TO A HOLDOVER OR DEFAULTING TENANT VIA E-MAIL OR TEXT MESSAGE; TO AMEND SECTION 89-7-29, MISSISSIPPI CODE OF 1972, TO REQUIRE REMOVAL OF A TENANT FOR NONPAYMENT OF RENT AND ANY LATE FEES; TO AMEND SECTION 89-7-31, MISSISSIPPI CODE OF 1972, TO REVISE THE TIME FOR A TENANT TO SHOW CAUSE FOR WHY HE OR SHE SHOULD NOT BE REMOVED FROM THE PREMISES FROM FIVE DAYS TO THREE DAYS; TO AMEND SECTION 89-7-39, MISSISSIPPI CODE OF 1972, TO PROHIBIT ADJOURNMENTS DURING HEARINGS FOR EVICTION DUE TO THE NONPAYMENT OF RENT FOR ALLOWING THE HEARING TO EXTEND BEYOND A PERIOD OF MORE THAN 30 DAYS; TO AMEND SECTION 89-7-45, MISSISSIPPI CODE OF 1972, TO REQUIRE ANY LATE FEES ACCRUED UNDER THE RENTAL AGREEMENT TO ALSO BE PAID BEFORE THE ISSUANCE OF A WARRANT WILL BE STAYED; TO REMOVE THE ABILITY OF A TENANT TO GIVE SATISFACTORY SECURITY INSTEAD OF PAYING THE RENT DUE; TO AMEND SECTION 89-7-49, MISSISSIPPI CODE OF 1972, TO REMOVE THE DISCRETION OF THE JUSTICE COURT JUDGE TO PUT THE LANDLORD IN POSSESSION OF THE PREMISES WHEN A TENANT FAILS TO PAY RENT; TO AMEND SECTION 89-8-7, MISSISSIPPI CODE OF 1972, TO EXPAND THE DEFINITION OF "RENT" TO INCLUDE ANY LATE FEES THAT A DEFAULTING TENANT IS REQUIRED TO PAY UNDER THE RENTAL AGREEMENT; TO AMEND SECTION 89-8-13, MISSISSIPPI CODE OF 1972, TO REQUIRE AN EVICTION HEARING TO BE HELD WITHIN THREE DAYS OF THE LANDLORD PROVIDING NOTICE TO THE TENANT OF HIS OR HER NONPAYMENT OF RENT UNDER THE RENTAL AGREEMENT; TO BRING FORWARD SECTIONS 89-7-7, 89-7-23, 89-7-25, 89-7-33, 89-7-35, 89-7-37, 89-7-41, 89-7-43, 89-7-47, 89-8-11, 89-8-17, 11-25-11, 11-25-19, 11-25-21, 11-25-23, 11-25-109, 11-25-111 AND 11-25-113, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 89-7-27, Mississippi Code of 1972, is amended as follows:
89-7-27. A tenant or lessee
at will or at sufferance, or for part of a year, or for one or more years, of
any houses, lands, or tenements, and the assigns, under-tenants, or legal
representatives of such tenant or lessee, * * * shall be removed from the premises
by the judge of the county court, any justice of the peace of the county, or by
the mayor or police justice of any city, town, or village where the premises,
or some part thereof, are situated, in the following cases, to wit:
First. Where such tenant shall hold over and continue in possession of the demised premises, or any part thereof, after the expiration of his or her term, without the permission of the landlord.
Second. After any
default in the payment of the rent pursuant to the agreement under which such
premises are held, and when complete satisfaction of the rent and any
late fees due cannot be obtained by distress of goods, and three (3) days'
notice, in writing or by e-mail or text message if the person who owes the
rent has provided an e-mail address or number to a cellular phone that is
capable of receiving text messages, requiring the payment of such rent or
the possession of the premises, shall have been served by the person entitled
to the rent on the person * * *owing the same who owes the rent.
SECTION 2. Section 89-7-29, Mississippi Code of 1972, is amended as follows:
89-7-29. The landlord or
lessor, his or her legal representatives, agents, or assigns, in order
to have the benefit of such proceedings, shall make oath or affirmation of the
facts which, according to * * *the last preceding section, authorize Section 89-7-27,
require the removal of the tenant, describing therein the premises
claimed and the amount of rent and any late fees due and when payable,
and that the necessary notice has been given to terminate such tenancy.
SECTION 3. Section 89-7-31, Mississippi Code of 1972, is amended as follows:
89-7-31. (1) On receiving
the affidavit, the county judge, justice court judge, municipal judge, or other
officer shall issue a summons, directed to the sheriff or any constable of the
county, or the marshal of the municipality in which the premises, or some part
thereof, are situated, describing the premises, and commanding him or her
to require the person in possession of the same or claiming the possession
thereof, immediately to remove from the premises, or to show cause before the
justice court judge or other officer, on a day to be named not less than * * * one ( * * *1) nor more than * * * three ( * * *3) 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 personal property, including any manufactured home, from the premises before the date and time ordered by the judge, then the landlord may dispose of your personal property without any further legal action."
SECTION 4. Section 89-7-39, Mississippi Code of 1972, is amended as follows:
89-7-39. The magistrate may, at the request of either party, adjourn the hearing from time to time, one (1) adjournment not to exceed ten (10) days, except by consent, and may issue subpoenas and attachments to compel the attendance of witnesses. However, in hearings for eviction due to the nonpayment of rent, no adjournment shall extend the entire hearing beyond a period of more than thirty (30) days.
SECTION 5. Section 89-7-45, Mississippi Code of 1972, is amended as follows:
89-7-45. If the proceedings
be founded upon the nonpayment of rent, the issuance of the warrant for the
removal of the tenant shall be stayed if the person owing the rent shall,
before the warrant be actually issued, pay the complete amount of rent
due, including any late fees that have accrued as a result of the nonpayment
of rent, and the costs of the proceedings, * * * to the person entitled to the rent, for the payment
thereof and costs in ten (10) days; and if the rent and costs shall not be paid
accordingly, the warrant shall then issue as if the proceedings had not been
stayed.
SECTION 6. Section 89-7-49, Mississippi Code of 1972, is amended 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 * * * shall 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 7. Section 89-8-7, Mississippi Code of 1972, is amended as follows:
89-8-7. (1) Subject to additional definitions contained in subsequent sections of this chapter which apply to specific sections or parts thereof, and unless the context otherwise requires, in this chapter:
(a) "Building and housing codes" includes any law, ordinance, or governmental regulation concerning fitness for habitation, construction, maintenance, operation, occupancy or use of any premises or dwelling unit;
(b) "Dwelling unit" means a structure or the part of a structure that is used as a home, residence or sleeping place by one (1) person who maintains a household or by two (2) or more persons who maintain a common household;
(c) "Good faith" means honesty in fact in the conduct of the transaction concerned and observation of reasonable community standards of fair dealing;
(d) "Landlord" means the owner, lessor or sublessor of the dwelling unit or the building of which it is a part, or the agent representing such owner, lessor or sublessor;
(e) "Organization" includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two (2) or more persons having a joint or common interest, and any other legal or commercial entity;
(f) "Owner" means one or more persons, jointly or severally, in whom is vested (i) all or part of the legal title to property or (ii) all or part of the beneficial ownership and a right to present use and enjoyment of the premises, and the term includes a mortgagee in possession;
(g) "Premises" means a dwelling unit and the structure of which it is a part, facilities and appurtenances therein, and grounds, areas and facilities held out for the use of tenants generally or whose use is promised to the tenant;
(h) "Rent" means all payments to be made to the landlord under the rental agreement including any late fees that are required to be paid under the rental agreement by a defaulting tenant;
(i) "Rental agreement" means all agreements, written or oral, and valid rules and regulations adopted under Section 89-8-11 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises;
(j) "Tenant" means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others;
(k) "Qualified tenant management organizations" means any organization incorporated under the Mississippi Nonprofit Corporation Act, a majority of the directors of which are tenants of the housing project to be managed under a contract authorized by this section and which is able to conform to standards set by the United States Department of Housing and Urban Development as capable of satisfactorily performing the operational and management functions delegated to it by the contract.
(2) For purposes of giving any notice required under this chapter, notice given to the agent of the landlord is equivalent to giving notice to the landlord. The landlord may contract with an agent to assume all the rights and duties of the landlord under this chapter; provided, however, that such a contract does not relieve the landlord of ultimate liability in regard to such rights and duties.
SECTION 8. 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) * * * 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. The
landlord shall be granted an eviction hearing within three (3) days of
providing notice to a tenant of that tenant's noncompliance of the rental
obligations of the tenant in the rental agreement.
(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 9. Section 89-7-7, Mississippi Code of 1972, is brought forward as follows:
89-7-7. A person having rent in arrear or due upon any lease or demise of lands for life or lives, for years, at will, or otherwise, may bring an action for such arrears of rent against the person who ought to have paid the same or his legal representative.
SECTION 10. Section 89-7-23, Mississippi Code of 1972, is brought forward as follows:
89-7-23. Notice to quit shall be necessary only where the term is not to expire at a fixed time. In all cases in which a notice is required to be given by the landlord or tenant to determine a tenancy, two (2) months' notice, in writing, shall be given where the holding is from year to year, and one (1) month's notice shall be given where the holding is by the half-year or quarter-year; and where the letting is by the month or by the week, one (1) week's notice, in writing, shall be given. This section shall not apply to rental agreements governed by the Residential Landlord and Tenant Act.
SECTION 11. Section 89-7-25, Mississippi Code of 1972, is brought forward as follows:
89-7-25. When a tenant, being lawfully notified by his landlord, shall fail or refuse to quit the demised premises and deliver up the same as required by the notice, or when a tenant shall give notice of his intention to quit the premises at a time specified, and shall not deliver up the premises at the time appointed, he shall, in either case, thenceforward pay to the landlord double the rent which he should otherwise have paid, to be levied, sued for, and recovered as the single rent before the giving of notice could be; and double rent shall continue to be paid during all the time the tenant shall so continue in possession.
SECTION 12. Section 89-7-33, Mississippi Code of 1972, is brought forward as follows:
89-7-33. Such summons shall be served as a summons is served in other cases, if the tenant can be found; if not, then by putting up a copy in some conspicuous place on the premises where the tenant last or usually resided.
SECTION 13. Section 89-7-35, Mississippi Code of 1972, is brought forward as follows:
89-7-35. (1) If, at the time appointed, it appears that the summons has been duly served, and if sufficient cause 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 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 personal property, including any manufactured home, from the premises, then, if the judge has not made some other finding regarding the disposition of any personal property in the vacated premises, the personal property shall be deemed abandoned and may be disposed of by the landlord without further notice or obligation to the tenant.
SECTION 14. Section 89-7-37, Mississippi Code of 1972, is brought forward as follows:
89-7-37. The person in possession of such premises, or any person claiming possession thereof, may, at or before the time appointed in the summons for showing cause, file an affidavit with the magistrate who issued the same, denying the facts upon which the summons was issued; and the matters thus controverted may be tried by the magistrate.
SECTION 15. Section 89-7-41, Mississippi Code of 1972, is brought forward as follows:
89-7-41. (1) If the decision 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 immediately to put the 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 personal property, including any manufactured home, from the premises, then, if the judge has not made some other finding regarding the disposition of any personal property in the vacated premises, the personal property shall be deemed abandoned and may be disposed of by the landlord without further notice or obligation to the tenant.
SECTION 16. Section 89-7-43, Mississippi Code of 1972, is brought forward as follows:
89-7-43. If the decision be in favor of the tenant, he shall recover costs of the applicant, and the magistrate shall issue execution therefor.
SECTION 17. Section 89-7-47, Mississippi Code of 1972, is brought forward as follows:
89-7-47. The magistrate before whom proceedings shall be had against a tenant holding over, shall keep a full record of his proceedings, and shall carefully preserve all papers in the cause, and the same costs shall be taxed and paid as are allowed for similar service in cases of unlawful entry and detainer, and the right of appeal shall exist as in such cases.
SECTION 18. Section 89-8-11, Mississippi Code of 1972, is brought forward as follows:
89-8-11. (1) A landlord may, from time to time, adopt rules or regulations, however described, concerning the tenant's use and occupancy of the premises. They are enforceable against the tenant only if:
(a) Their purpose is to promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord's property from abuse, or make a fair distribution of services and facilities provided for the tenants generally;
(b) They are reasonably related to the purpose for which they are adopted;
(c) They apply to all tenants in the premises in a fair manner;
(d) They are sufficiently explicit in their prohibition, direction or limitation of the tenant's conduct to fairly inform him of what he must or must not do to comply;
(e) They are not for the purpose of evading the obligations of the landlord.
(2) A rule or regulation adopted or amended after the tenant enters into the rental agreement is enforceable against the tenant if reasonable notice of its adoption or amendment is given to the tenant and it does not work a substantial modification of the rental agreement.
(3) If the dwelling unit is an apartment in a horizontal property regime, the tenant shall comply with the bylaws of the association of the apartment owners; and if the dwelling unit is an apartment in a cooperative housing corporation, the tenant shall comply with the bylaws of the corporation.
(4) Unless otherwise agreed, the tenant shall occupy his dwelling unit only as a dwelling unit.
SECTION 19. Section 89-8-17, Mississippi Code of 1972, is brought forward as follows:
89-8-17. Notwithstanding the provisions of Section 89-8-13, the landlord may, at any time after the expiration of a rental agreement, recover possession of the dwelling unit, cause the tenant to quit the dwelling unit involuntarily, demand an increase in rent or decrease the services to which the tenant has been entitled in accordance with any other provisions of this chapter, if such actions by the landlord did not have the dominant purpose of retaliation against the tenant for his actions authorized under this chapter and the landlord received written notice of each condition which was the subject of such actions of the tenant.
SECTION 20. Section 11-25-11, Mississippi Code of 1972, is brought forward as follows:
11-25-11. The warrant shall be directed to the sheriff or any constable of the proper county, as the case may require, and shall be made returnable on a day certain, not less than five (5) days nor more than twenty (20) days after its date, and shall be forthwith executed by the proper officer on the defendant, in the same manner as a summons is required to be served, by delivering a copy, and he shall make due return to the justice court judge to whom the case is assigned, at the time and place therein mentioned, of the manner in which he shall have executed the same.
SECTION 21. Section 11-25-19, Mississippi Code of 1972, is brought forward as follows:
11-25-19. If on the day of court and at the place designated, it appears that the defendant has been duly served with the warrant, the justice court judge shall proceed, without further pleadings in writing, to the trial of the complaint.
SECTION 22. Section 11-25-21, Mississippi Code of 1972, is brought forward as follows:
11-25-21. The plaintiff may, on the trial, claim and establish by evidence, any amount due for arrears of rent of the land of which possession is sought, or a reasonable compensation for the use and occupation thereof; and the justice court judge shall find, upon the evidence, the arrears of rent or reasonable compensation, and may give judgment against the defendant in the action for such arrears of rent or reasonable compensation, and award a writ of fieri facias thereon.
SECTION 23. Section 11-25-23, Mississippi Code of 1972, is brought forward as follows:
11-25-23. If the finding be for the plaintiff, the justice court judge shall render judgment in favor of the plaintiff that he recover possession of the land, with costs, and shall award a writ of habere facias possessionem; and the justice court judge may issue alias writs and enforce the judgment and punish for contempt of process thereon; but a writ of habere facias possessionem or execution shall not issue within five (5) days from the date of the judgment.
SECTION 24. Section 11-25-109, Mississippi Code of 1972, is brought forward as follows:
11-25-109. The warrant shall be directed to the sheriff, or any constable of the county, and shall be made returnable to the first term of the county court held after the issuance of the said warrant, unless it shall be issued more than ten (10) days before the said term of court when it may be made returnable before the judge of the county court at the usual place of holding the county court at a day to be named not more than ten (10) days, or less than five (5) days, after the date of issuance of the said warrant; and the cause shall be triable at such term, or before the judge in vacation, (if so returnable), on the day therein, provided the defendant has been served with process at least five (5) days before the return day of writ.
SECTION 25. Section 11-25-111, Mississippi Code of 1972, is brought forward as follows:
11-25-111. The plaintiff may, on the trial, claim and establish by evidence, any amount due for arrears of rent on the land of which possession is sought, or a reasonable compensation for the use and occupation thereof; and the judge of the county court, shall find upon the evidence the arrears of rent or reasonable compensation and the judge of the county court may give judgment against the defendant in the action for such arrears of rent or reasonable compensation and may award a writ of fieri facias thereon. All such cases shall be tried by the judge without the intervention of the jury.
SECTION 26. Section 11-25-113, Mississippi Code of 1972, is brought forward as follows:
11-25-113. If the finding be for the plaintiff, the judge of the county court shall render judgment in favor of the plaintiff, that he recover possession of the land, with costs, and shall award a writ of habere facias possessionem, and said judge may issue alias writs and enforce the judgment and may punish for contempt of process thereon; provided, however, that a writ of habere facias possessionem or execution shall not issue within five days from the date of judgment.
SECTION 27. This act shall take effect and be in force from and after July 1, 2017.