MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Judiciary A
By: Representative Snowden
AN ACT TO CREATE THE MISSISSIPPI MARKETABLE RECORD TITLE ACT; TO PROVIDE DEFINITIONS RELATING TO MARKETABLE TITLE; TO PROVIDE THAT A PERSON HAS MARKETABLE TITLE IF THE PERSON HAS AN UNBROKEN CHAIN OF TITLE FOR THIRTY-TWO YEARS; TO SPECIFY THE INTERESTS THAT A MARKETABLE TITLE IS SUBJECT TO; TO PROVIDE THAT A PERSON MAY PRESERVE AN INTEREST IF THE PERSON FILES A NOTICE OF INTENT TO PRESERVE THE INTEREST DURING THE THIRTY-TWO YEAR PERIOD; TO PROVIDE THAT MARKETABLE TITLE IS HELD FREE AND CLEAR OF ALL OTHER INTERESTS; TO PROVIDE THAT DISABILITY OR LACK OF KNOWLEDGE DOES NOT SUSPEND THE RUNNING OF THE THIRTY-TWO YEAR PERIOD; TO SPECIFY THE INTERESTS THAT ARE NOT BARRED BY THIS ACT; TO PROVIDE THAT THIS ACT DOES NOT RELIEVE A PERSON OF A CONTRACTUAL LIABILITY WITH RESPECT TO AN INTEREST ANTEDATING THE PERSON'S ROOT OF TITLE; TO PROVIDE THAT THIS ACT DOES NOT EXTEND THE STATUTE OF LIMITATIONS FOR BRINGING AN ACTION; TO PROVIDE THAT INDEFINITE REFERENCES TO DOCUMENTS DO NOT CHARGE A PERSON WITH KNOWLEDGE OF THE REFERENCED DOCUMENTS; TO AMEND SECTION 11-17-35, MISSISSIPPI CODE OF 1972, WHICH RELATES TO CONFIRMING TITLE TO, AND CANCELING AND REMOVING CLOUDS FROM, REAL ESTATE TO CONFORM TO THE PROVISIONS OF THIS ACT; TO BRING FORWARD SECTIONS 15-1-7, 15-1-11, 15-1-13 AND 15-1-15, MISSISSIPPI CODE OF 1972, WHICH RELATE TO ADVERSE POSSESSION AND RECOVERING OF LAND OF DEFECTS IN AN INSTRUMENT, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Marketable Record Title Act."
SECTION 2. The following words shall have the following meanings, unless a different meaning clearly appears from the context:
(a) "Association" means an organization in a subdivision, planned community, condominium or other common interest community that creates and enforces rules for real estate that is located within its jurisdiction, including, but not limited to, enforcement of the declaration and any security interests or liens that are imposed on the real estate under the declaration.
(b) "Conveyance" means a transfer of real estate other than by will or operation of law.
(c) "Declaration" means any document, however denominated, recorded in the records maintained by the recording office that creates a subdivision, planned community, condominium or other common interest community, and subjects the real estate in the community to covenants, conditions and restrictions that may be enforced by an association or that authorize an association to impose a charge, assessment or lien against the real estate or the owner of the real estate.
(d) "Document" means information that is inscribed on a tangible medium or that is stored in an electronic or other format and is retrievable in perceivable form.
(e) "Effective date of the root of title" means the date on which the root of title is recorded.
(f) "Marketable record title" means a title of record, complying with Section 3 of this act, that operates to extinguish interest and claims existing before the effective date of the root of title, as provided in Section 5 of this act.
(g) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity.
(h) "Real estate" means an estate or interest in, over or under land, including materials, structures, fixtures and other things that by custom, usage or law pass with a conveyance of land whether or not described or mentioned in the contract of sale or instrument of conveyance, and, if appropriate to the context, the land in which the interest is claimed. "Real estate" includes rents and the interest of a landlord or tenant.
(i) "Record," used as a verb, means to submit a document complying with applicable legal standards, with the required fees and taxes paid, to the recording office. The terms "recorded" and "recording" have corresponding meanings.
(j) "Record chain of title" means the series of recorded documents creating or evidencing rights of the successive holders of title to real estate.
(k) "Record location" means the location by book and page, instrument number, electronic retrieval code or other specific place of a document in the records accessible in the same recording office where the document containing the reference to the location is found.
(l) "Recording office" means the office of the chancery clerk of the county where the real estate is located.
(m) "Records" includes probate and other official records available in the recording office.
(n) "Restriction" means a covenant, condition, easement or other limitation created by agreement, grant or implication affecting the use or enjoyment of real estate, but does not include a security interest of lien.
(o) "Root of title" means a conveyance or other title transaction, whether or not it is a nullity, in the record chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by that person, upon which that person relies as a basis for marketability of title, and which was the last to be recorded at least thirty-two (32) years before the time when marketability is being determined.
(p) "Signed" includes the use of a symbol executed or adopted by a party with present intention to authenticate a document.
(q) "Title" means the right to an interest in real estate, including, but not limited to, the interest of an owner, lessee, possessor, lien or, holder of a security interest and beneficiary of a restriction including an owner of an easement. (r) "Title transaction" means a transaction purporting to affect title to real estate, including, but not limited to, title by will or descent, by tax deed or patent, by trustee's, guardian's, executor's, administrator's or sheriff's deed, by decree of a court, by general warranty deed, by special warranty deed, by quitclaim deed and by a security interest.
SECTION 3. A person who has an unbroken chain of title to real estate for thirty-two (32) years or more has a marketable record title to the real estate, subject only to the matters stated in Section 4 of this act. A person shall be deemed to have an unbroken chain of title when the official public records disclose a conveyance or other title transaction of record not less than thirty-two (32) years before the time marketability is determined, and the conveyance or other title transaction intends to create the interest in or contains language sufficient to transfer the interest to the person claiming the interest, or some other person from whom, by one or more conveyance or other title transactions of record, the intended interest has become vested in the person claiming the interest. If anything appears of record intending to divest the claimant of the intended interest, the chain of title is broken.
SECTION 4. This act does not prohibit:
(a) Any interests and defects that are apparent in the root of title or inherent in other documents of which the claim of record is formed, provided that a general reference in a document to an easement, restriction, encumbrance or other interest created before the effective date of the root of title is insufficient to preserve it unless a reference by record location is made in the document to a recorded title transaction that created the easement, restriction, encumbrance or other interest;
(b) Any interests preserved by the recording of proper notice of intent to preserve an interest;
(c) Any interests arising out of a title transaction recorded after the effective date of the root of title, and which have not been previously extinguished;
(d) Any restriction, the existence of which is clearly observable by physical evidence of its use;
(e) Any use or occupancy inconsistent with the marketable record of title, to the extent that the use or occupancy would have been revealed by reasonable inspection or inquiry;
(f) Any declaration recorded under Section 89-9-17, or otherwise recorded in favor of an association;
(g) Any right, title or interest of the United States, or of the State of Mississippi, or any political subdivision or agency, including, but not limited to, state title to lands beneath navigable waters acquired by virtue of sovereignty;
(h) Any oil, gas and other mineral interests, except sand and gravel, and any development, mining, production or other rights or easements related to or other exercisable in connection therewith;
(i) Any right-of-way, regardless of the nature of title, in actual use or being retained for prospective future use for:
(i) Railroad purposes;
(ii) Transmission lines or facilities for the transmission of electricity, electronic communications, water, oil, gas or other public utilities;
(iii) Sewage or drainage;
(iv) Ingress or egress; or
(v) Any conservation easement created under Section 89-19-1 et seq.; and
(j) Any interest of a mortgagee, or interest in the nature of that of a mortgagee, until after the mortgage or deed of trust under which the interest is claimed becomes due and payable, except that, where the mortgage or deed of trust has no maturity date expressed, the thirty-two (32) year period shall begin to run from the date of recording of the mortgage or deed of trust.
SECTION 5. Subject only to Section 4 of this act, a marketable record of title is free and clear of all interests, claims and charges, the existence of which depends upon an act, transaction, event or omission that occurred before the effective date of the root of title. All interests, claims, or charges, however determined, whether legal or equitable, present or future, whether the interests, claims or charges are asserted by a person who is or is not under a disability, whether the person is within or without the state, whether the person is an individual or an organization, or is private or governments, are void. Recording an interest after the effective date of the root of title does not revive an interest previously extinguished.
SECTION 6. (1) A person claiming an interest in real estate may preserve and keep the interest, if any, effective by recording during the thirty-two (32) year period immediately following the effective date of the root of title of the person who would otherwise obtain marketable record title, a notice of intent to preserve the interest. Disability or lack of knowledge of any kind on the part of anyone does not suspend the running of the thirty-two (32) year period. The notice may be recorded by the claimant or by another person acting on behalf of a claimant who is:
(a) Under a disability;
(b) Unable to assert a claim on his or her own behalf; or
(c) One of a class, but whose identity cannot be established or is uncertain at the time of recording the notice of intent to preserve the interest.
(2) To be effective, the notice must:
(a) State the name of the person claiming to be the owner of the interest to be preserved;
(b) Contain an accurate and full description of all lands affected by the notice, or, if the claim is founded on a recorded instrument, then a reference by record location to a recorded document creating, reserving or evidencing the interest to be preserved or a judgment confirming the interest;
(c) Be signed by, or on behalf of, the person claiming to be the owner of the interest; and
(d) State whether the person who signs the notice claims to be the owner or to be acting on behalf of the owner.
SECTION 7. This act does not relieve a person of contractual liability with respect to an interest antedating the person's root of title to which the person has agreed to be subject by reason of the provision of a deed or contract to which the person is a party, but a person under contractual liability may create a marketable record of title in a transferee not otherwise subjected to the interest antedating root of title by this act.
SECTION 8. This act does not extend the period for bringing an action or for doing any other required act under a statute of limitations.
SECTION 9. No person shall use the privilege of filing notices under this act for the purpose of asserting false or fictitious claim to real estate; and in any action relating thereto, if the court finds that any person has filed a false or fictitious claim, the court may award to the prevailing party all costs incurred by him or her in the action, including a reasonable attorney's fee, and may also award to the prevailing party all damages that he or she may have sustained as a result of filing the notice of the claim.
SECTION 10. (1) Unless a reference in a document refers to another document by its record location, a person by reason of the reference is not charged with knowledge of the document or an adverse claim founded on it, and the document is not in the record chain of title by reason of the reference to it.
(2) References that are not to a record location and are not definite enough to charge a person with knowledge of an interest or to bring the document within the record chain of title include references substantially similar to:
(a) "Subject to the terms of a deed dated July 4, 1976, from A to B";
(b) "Subject to a mortgage from A to B";
(c) "Subject to existing encumbrances";
(d) "Subject to easements of record";
(e) "Subject to mortgages of record"; or
(f) "Excepting so much of the described premises as I have heretofore conveyed."
(3) This section does not prevent an indefinite reference from constituting a waiver or exception or from being taken into account in determining the existence of a contractual obligation or condition between the immediate parties to the document in which the reference occurs, or a negation of a warranty of title.
(4) This section does not limit the effect of recording a memorandum of lease or other document the recording of which is permitted by law.
SECTION 11. This act shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in Section 3, subject to only such limitations as appear in Section 4. This act shall be supplemental to all general laws involving titles.
SECTION 12. (1) If a period of limitation specified in this act would result in prohibiting commencement of a judicial proceeding before the effective date of this act or within two (2) years have expired after its effective date, the period during which the proceeding may be brought is extended until two (2) years after the effective date, but only if the period would have continued to run under the former law until after the effective date. In all other cases, the period of limitation is that specified in this act.
(2) A person who claims an interest that would be extinguished under this act may preserve the interest by recording a notice of intent to preserve the interest within three (3) years after the effective date of this act. The notice has the effect provided in Section 6 of this act.
SECTION 13. Section 11-17-35, Mississippi Code of 1972, is amended as follows:
11-17-35. In bills to
confirm title to real estate, and to cancel and remove clouds there from, the
complainant must set forth in plain and concise language the deraignment of his
title. If title has passed out of the sovereign more than seventy-five (75)
years prior to the filing of the bill, then the deraignment shall be sufficient
if it shows title out of the sovereign and a deraignment of title for
not less than * * * thirty-two (32) years prior to the filing of the bill.
A mere statement therein that complainant is the real owner of the land shall
be insufficient, unless good and valid reason be given why he does not deraign
his title. In all such cases, final decrees in the complainant's favor shall
be recorded in the record of deeds, and shall be indexed as if a conveyance of
the land from the defendant or each of them, if more than one, to the
complainant or complainants, if more than one.
SECTION 14. Section 15-1-7, Mississippi Code of 1972, is brought forward as follows:
15-1-7. A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same. However, if, at the time at which the right of any person to make an entry or to bring an action to recover land shall have first accrued, such person shall have been under the disability of infancy or unsoundness of mind, then such person or the person claiming through him may, notwithstanding that the period of ten years hereinbefore limited shall have expired, make an entry or bring an action to recover the land at any time within ten years next after the time at which the person to whom the right shall have first accrued shall have ceased to be under either disability, or shall have died, whichever shall have first happened. However, when any person who shall be under either of the disabilities mentioned, at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed, by reason of the disability of any other person, to make an entry or to bring an action to recover the land beyond the period of ten years next after the time at which such person shall have died.
SECTION 15. Section 15-1-11, Mississippi Code of 1972, is brought forward as follows:
15-1-11. Any person who has a right of action for the recovery of land because of any one or more of the following enumerated defects in any instrument, shall institute his suit therefor not later than 10 years next after the date when such instrument has been actually recorded in the office of the clerk of the chancery court of the county in which such real estate is situated and not afterwards:
(1) Where it has not been signed by the proper officer of any corporation;
(2) Where the corporate seal of the corporation has not been impressed on such instrument;
(3) Where the record does not show such corporate seal;
(4) Because the record does not show authority therefor by the board of directors and stockholders (or either of them) of a corporation;
(5) Where such instrument was executed and delivered by a corporation which had been dissolved or whose charter had expired, or whose corporate franchise had been cancelled, withdrawn or forfeited;
(6) Where the executor, administrator, guardian, assignee, receiver, master in chancery, agent or trustee, or other agency making such instrument, signed or acknowledged the same individually instead of in his representative or official capacity;
(7) Where such instrument is executed by a trustee without record of judicial or other ascertainment of the authority of such trustee or of the verity of the facts therein recited;
(8) Where the officer taking the acknowledgment of such instrument having an official seal did not affix the same to the certificate of acknowledgment;
(9) Where the notarial seal is not shown of record;
(10) Where the wording of the consideration may or might create an implied lien in favor of the grantor (by this is not meant an express vendor’s lien retained).
If, at the time at which the right of any person to bring an action for the recovery of land because of any such defects, shall have first accrued, such persons shall have been under the disability of infancy or unsoundness of mind, then such person or the person claiming through him, may, notwithstanding that the period of limitations hereinbefore provided for shall have expired, bring an action to recover the land at any time within the period of limitations provided herein next after the time at which the person to whom the right shall have first accrued shall have ceased to be under either disability, or shall have died, whichever shall have first happened. However, when any person who shall be under either of the disabilities mentioned, at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability no time to bring an action to recover the land beyond the period of limitations provided herein next after the time at which such persons shall have died, shall be allowed by reason of the disability of any other person. Moreover, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one years.
This section shall not, however, apply to forged instruments.
SECTION 16. Section 15-1-13, Mississippi Code of 1972, is brought forward as follows:
15-1-13. (1) Ten (10) years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section 15-1-7. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one (31) years.
(2) For claims of adverse possession not matured as of July 1, 1998, the provisions of subsection (1) shall not apply to a landowner upon whose property a fence or driveway has been built who files with the chancery clerk within the ten (10) years required by this section a written notice that such fence or driveway is built without the permission of the landowner. Failure to file such notice shall not create any inference that property has been adversely possessed. The notice shall be filed in the land records by the chancery clerk and shall describe the property where said fence or driveway is constructed.
SECTION 17. Section 15-1-15, Mississippi Code of 1972, is brought forward as follows:
15-1-15. Actual occupation for three years, after two years from the day of sale of land held under a conveyance by a tax collector in pursuance of a sale for taxes, shall bar any suit to recover such land or assail such title because of any defect in the sale of the land for taxes, or in any precedent step to the sale, saving to minors and persons of unsound mind the right to bring suit within such time, after the removal of their disabilities, and upon the same terms as is provided for the redemption of land by such persons.
SECTION 18. This act shall take effect and be in force from and after January 1, 2020.