MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Judiciary A
By: Representatives Dortch, Johnson (94th), Gibbs (36th), Sykes
AN ACT TO CREATE "THE UNIFORM PARTITION OF HEIRS PROPERTY ACT";TO PROVIDE DEFINITIONS FOR SUCH; TO CREATE A UNIFORM PROCEDURE FOR PARTITION OF PROPERTY IF SUCH PROPERTY IS HEIR PROPERTY; TO PROVIDE THAT THIS ACT SUPPLEMENTS SECTIONS 11-21-1 THROUGH 11-21-45 GOVERNING PARTITION OF REAL PROPERTY; TO REQUIRE APPRAISAL OF PROPERTY; TO CREATE A PROCEDURE FOR SUCH APPRAISAL; TO REQUIRE NOTICE TO ALL INTERESTED PARTIES; TO AUTHORIZE AN HEIR TO REQUEST A PARTITION BY SALE UNDER THIS ACT; 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 Uniform Partition of Heirs Property Act."
SECTION 2. The following words shall have the meanings described herein:
(1) "Ascendant" means an individual who precedes another individual in lineage, in the direct line of ascent from the other individual.
(2) "Collateral" means an individual who is related to another individual under the law of intestate succession of this state but who is not the other individual's ascendant or descendant.
(3) "Descendant" means an individual who follows another individual in lineage, in the direct line of descent from the other individual.
(4) "Determination of value" means a court order determining the fair market value of heirs' property as provided by law or adopting the valuation of the property agreed to by all co-tenants.
(5) "Heirs' property" means real property held in tenancy in common that satisfies all of the following requirements as of the filing of a partition action:
(a) There is no agreement in a record binding all the co-tenants that governs the partition of the property;
(b) One or more of the co-tenants acquired title from a relative, whether living or deceased; and
(c) Any of the following applies:
(i) 20 percent (20%) or more of the interests are held by co-tenants who are relatives;
(ii) 20 percent (20%) or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
(iii) 20 percent (20%) or more of the co-tenants are relatives.
(6) "Partition by sale" means a court-ordered sale of the entire heirs' property, whether by open-market sale, sealed bids, or auction conducted under Section 11-21-11.
(7) "Partition in kind" means the division of heirs' property into physically distinct and separately titled parcels.
(8) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(9) "Relative" means an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or law of this state other than this chapter.
SECTION 3. (1) In any action to partition real property, the court shall first determine whether the property is heirs' property. If the court determines that the property is heirs' property, the property must be partitioned under this act unless all of the co-tenants otherwise agree in a record.
(2) This act supplements Sections 11-21-1 through 11-21-45 governing partition of real property. If an heirs property action is governed by this act, this act supersedes any other provisions governing partition of real property that are inconsistent with this act.
SECTION 4. (1) This act does not limit or affect the method by which service of a petition in a partition action may be made.
(2) If the plaintiff in a partition action seeks citation by publication and the court determines that the property may be heirs' property, the plaintiff, not later than the tenth (10th) day after the date the determination is made, shall post, and maintain while the action is pending, a conspicuous sign on the property that is the subject of the action. The sign must state that the action has commenced and identify the name and address of the court and the common designation by which the property is known. The court may require the plaintiff to publish on the sign the name of the plaintiff and the known defendants.
SECTION 5. If the court appoints special commissioners as otherwise authorized by law, each commissioner, in addition to the requirements and disqualifications applicable to commissioners under such law, must be impartial and may not be a party to or a participant in the action.
SECTION 6. (1) Except as provided by subsection (2) or (3) of this section, if the court determines that the property that is the subject of a partition action is heirs' property, the court shall first determine the fair market value of the property by ordering an appraisal under subsection (4).
(2) If all co-tenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation.
(3) If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.
(4) If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser to determine the fair market value of the property assuming sole ownership of the fee simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.
(5) If an appraisal is conducted under subsection (d), not later than the 10th day after the date the appraisal is filed, the court shall send notice to each party with a known address, stating:
(a) The appraised fair market value of the property;
(b) That the appraisal is available at the clerk's office; and
(c) That a party may file with the court an objection to the appraisal not later than the thirtieth (30th) day after the date notice is sent, stating the grounds for the objection.
(6) If an appraisal is filed with the court under subsection (4), the court shall conduct a hearing to determine the fair market value of the property not earlier than the thirtieth (30th) day after the date a copy of the notice of the appraisal is sent to each party under subsection (5), whether or not an objection to the appraisal is filed under subsection (5)(c). In addition to the court-ordered appraisal, the court may consider any other evidence of value offered by a party.
(7) After a hearing under subsection (6), but before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value.
SECTION 7. (1) If any co-tenant requested partition by sale, after the determination of value under section 5 of this act, the court shall send notice to the parties that any co-tenant except a co-tenant that requested partition by sale may buy all the interests of the co-tenants that requested partition by sale.
(2) Not later than the forty-fifth (45th) day after the date notice is sent under subsection (1), any co-tenant except a co-tenant that requested partition by sale may give notice to the court that the co-tenant elects to buy all the interests of the co-tenants that requested partition by sale.
(3) The purchase price for each of the interests of a co-tenant that requested partition by sale is the value of the entire parcel determined under Section 5 of this act multiplied by the co-tenant's fractional ownership of the entire parcel.
(4) After the period provided by subsection (2) of this section expires:
(a) If only one co-tenant elects to buy all the interests of the co-tenants that requested partition by sale, the court shall notify all the parties of that fact;
(b) If more than one co-tenant elects to buy all the interests of the co-tenants that requested partition by sale, the court shall:
1. Allocate the right to buy those interests among the electing co-tenants based on each electing co-tenant's existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all co-tenants electing to buy; and
2. Send notice to all the parties of that fact and of the price to be paid by each electing co-tenant; or
(c) If no co-tenant elects to buy all the interests of the co-tenants that requested partition by sale, the court shall:
1. Send notice to all the parties of that fact; and
2. Resolve the partition action as described by this act.
(5) If the court sends notice to the parties under subsection (4)(a) or (b), the court shall set a date, not earlier than the sixtieth (60th) day after the date notice was sent, by which an electing co-tenant must pay the co-tenant's apportioned price into the court. After that date:
(a) If all electing co-tenants timely pay their apportioned price into court, the court shall:
1. Issue an order reallocating all the interests of the co-tenants; and
2. Disburse the amounts held by the court to the persons entitled to them.
(b) If no electing co-tenant timely pays its apportioned price, the court shall resolve the partition action under Section (1) or (2) as if the interests of the co-tenants that requested partition by sale were not purchased; or
(c) If one (1) or more but not all of the electing co-tenants fail to pay their apportioned price on time, the court shall give notice to the electing co-tenants that paid their apportioned price of the interest remaining and the price for all that interest.
(6) Not later than the 20th day after the date the court gives notice under subsection (5)(c), any co-tenant that paid may elect to purchase all of the remaining interest by paying the entire price into the court. After that period expires:
(a) If only one co-tenant pays the entire price for the remaining interest, the court shall:
1. Issue an order reallocating the remaining interest to that co-tenant;
2. Promptly issue an order reallocating the interests of all of the co-tenants; and
3. Disburse the amounts held by the court to the persons entitled to the amounts;
(b) If no co-tenant pays the entire price for the remaining interest, the court shall resolve the partition action as provided under Section (1) or (2) as if the interests of the co-tenants that requested partition by sale were not purchased; or
(c) If more than one (1) co-tenant pays the entire price for the remaining interest, the court shall:
1. Reapportion the remaining interest among those paying co-tenants, based on each paying co-tenant's original fractional ownership of the entire parcel divided by the total original fractional ownership of all co-tenants that paid the entire price for the remaining interest;
2. Promptly issue an order reallocating all of the co-tenants' interests;
3. Disburse the amounts held by the court to the persons entitled to the amounts; and
4. Promptly refund any excess payment held by the court.
(7) Not later than the forty-fifth (45th) day after the date the court sends notice to the parties as provided under this section, any co-tenant entitled to buy an interest under this section may request the court to authorize the sale as part of the pending action of the interests of co-tenants named as defendants and served with the complaint but that did not appear in the action.
(8) If the court receives a timely request under subsection (7) of this section, the court, after hearing, may deny the request or authorize the requested additional sale on such terms as the court determines are fair and reasonable, subject to the following limitations:
(a) A sale authorized under this subsection may occur only after the purchase prices for all interests subject to sale under subsections (a) through (f) have been paid into court and those interests have been reallocated among the co-tenants as provided in those subsections; and
(b) The purchase price for the interest of a nonappearing co-tenant is based on the court's determination of value under this act.
SECTION 8. (1) If all the interests of all co-tenants that requested partition by sale are not purchased by other co-tenants, a co-tenant that has requested partition in kind remains, the court shall order partition in kind unless the court, after consideration of the factors listed in this act, finds that partition in kind will result in substantial prejudice to the co-tenants as a group. In considering whether to order partition in kind, the court shall approve a request by two or more parties to have the requesting parties' individual interests aggregated.
(2) If the court does not order partition in kind under this act, the court shall order partition by sale as provided in this act or, if no co-tenant requested partition by sale, the court shall dismiss the action.
(3) If the court orders partition in kind under this act, the court may require that one (1) or more co-tenants pay one or more other co-tenants amounts so that the payments, taken together with the value of the in-kind distributions to the co-tenants, will make the partition in kind just and proportionate in value to the fractional interests held.
(4) If the court orders partition in kind, the court shall allocate to the co-tenants that are unknown, unlocatable, or the subject of a default judgment, if those co-tenants' interests were not bought out, a part of the property representing the combined interests of those co-tenants as determined by the court, and that part of the property shall remain undivided.
SECTION 9. (1) In determining whether partition in kind would result in substantial prejudice to the co-tenants as a group, the court shall consider the following:
(a) Whether the heirs' property practicably can be divided among the co-tenants;
(b) Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if the property were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur;
(c) Evidence of the collective duration of ownership or possession of the property by a co-tenant and one (1) or more predecessors in title or predecessors in possession to the co-tenant who are or were relatives of the co-tenant or each other;
(d) A co-tenant's sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the co-tenant;
(e) The lawful use being made of the property by a co-tenant and the degree to which the co-tenant would be harmed if the co-tenant could not continue the same use of the property;
(f) The degree to which the co-tenants have contributed the co-tenants' pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and
(g) Any other relevant factor.
(2) The court may not consider any one factor under this section to be dispositive without weighing the totality of all relevant factors and circumstances.
SECTION 10. (1) If the court orders a sale of heirs' property, the sale must be an open-market sale unless the court finds that a sale by sealed bids or at an auction would be more economically advantageous and in the best interest of the co-tenants as a group.
(2) If the court orders an open-market sale and the parties, not later than the tenth (10th) day after the date the order is entered, agree on a real estate broker to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties do not agree on a broker, the court shall appoint a disinterested real estate broker to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the determination of value and on the terms and conditions established by the court.
(3) If the broker appointed under the provisions of this act obtains within a reasonable time an offer to purchase the property for at least the value determined,:
(a) The broker shall comply with the reporting requirements of this act; and
(b) The sale may be completed in accordance with state law other than this chapter.
(4) If the broker appointed under the provisions of this act does not obtain within a reasonable time an offer to purchase the property for at least the determination of value, the court, after hearing, may:
(a) Approve the highest outstanding offer, if any;
(b) Redetermine the value of the property and order that the property continue to be offered for an additional time; or
(c) Order that the property be sold by sealed bids or at an auction.
(5) If the court orders a sale by sealed bids or at an auction, the court shall set terms and conditions of the sale. If the court orders an auction, the auction must be conducted in the manner provided by law for a sale made under execution.
(6) If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds.
SECTION 11. (1) Unless required to do so earlier by other law governing the partition of real property, a broker appointed under the authority of this act to offer heirs' property for open-market sale shall file a report with the court not later than the seventh (7th) day after the date an offer is received to purchase the property for at least the value determined under this act.
(2) The report required by subsection (1) must contain the following information:
(a) A description of the property to be sold to each buyer;
(b) The name of each buyer;
(c) The proposed purchase price;
(d) The terms and conditions of the proposed sale, including the terms of any owner financing;
(e) The amounts to be paid to lienholders;
(f) A statement of contractual or other arrangements or conditions of the broker's commission; and
(g) Other material facts relevant to the sale.
SECTION 12. In applying and construing this act, consideration must be given to the need to promote uniformity of the law with respect to the subject matter of this act among states that enact a law based on the uniform act on which this chapter is based.
SECTION 13. This act shall take effect and be in force from and after July 1, 2019.