House Bill 1023

AN ACT TO AMEND SECTION 11-21-3, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A COURT, IN ITS DISCRETION, TO ORDER A JOINT TENANT, TENANT IN COMMON, COPARCENER OR ANY OTHER PERSON ON LAND IN DISPUTE FOR PARTITION TO LEAVE THE LAND OR BE REMOVED; TO CREATE NEW SECTION 11-21-77.1, MISSISSIPPI CODE OF 1972, TO AUTHORIZE ANY COURT, IN ITS DISCRETION, TO ORDER ANY TENANT IN COMMON OR ANY OTHER PERSON WHO HAS POSSESSION OR CONTROL OVER PROPERTY THAT IS IN DISPUTE FOR PARTITION TO RETURN THE PROPERTY OR SEPARATE HIMSELF OR HERSELF FROM THE PROPERTY; TO AMEND SECTION 11-21-77, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; TO AMEND SECTION 91-31-15, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A COURT, IN ITS DISCRETION, TO ORDER A JOINT TENANT, TENANT IN COMMON, CO-PARCENER OR ANY OTHER PERSON ON LAND IN DISPUTE FOR PARTITION TO LEAVE THE LAND OR BE REMOVED; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 11-21-3, Mississippi Code of 1972, is amended as follows:

11-21-3. (1) Partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five (5), may be made by judgment of the chancery court of that county in which the lands or some part thereof, are situated; or, if the lands be held by devise or descent, the division may be ordered by the chancery court of the county in which the will was probated or letters of administration granted, although none of the lands be in that county.

However, any person owning an indefeasible fee simple title to an undivided interest in land may procure a partition of said land and have the interest of such person set apart in fee simple free from the claims of life or other tenants, remaindermen or reversioners, provided the life or other tenants, and other known living persons having an interest in the lands, are made defendants if they do not join in the proceeding as plaintiffs.

(2) The court may, in its discretion, order any joint tenant, tenant in common, or coparcener, or any other person who is on the land to leave the land and remove only his or her own property from the land. If any person fails to leave the land as ordered, the court may order the sheriff of the county in which the land is located to remove the person and the person's possessions.

SECTION 2. The following shall be codified as Section 11-21-77.1, Mississippi Code of 1972:

11-21-77.1. Any court, in its discretion, may order any tenant in common or any other person who has possession or control over the property to return the property or separate himself or herself from the property. If any person fails to return the property so ordered or separate himself or herself as ordered by the court, the sheriff of the county in which the property is located may be ordered to take the property or remove the person.

SECTION 3. Section 11-21-77, Mississippi Code of 1972, is amended as follows:

11-21-77. If the petitioner makes an affidavit at the commencement of his suit, or afterwards, of his right as a tenant in common, and that there is danger of the removal of the property, so as to defeat or endanger his right, the county court or the justice of the peace, as the case may be, shall issue a writ for the seizure of the property; and if the person having it in possession will not give a bond with sufficient sureties, approved by the officer executing the writ, conditioned to have the property forthcoming to abide the final order which shall be made in the case, payable to the petitioner, in a sum sufficient to cover his interest in the property, it shall be delivered to petitioner on his giving a bond, payable to the person from whom it was taken, with sufficient sureties, approved as above provided, in a penalty equal to the value of the interest of such person, conditioned to have the property before the county court or the justice of the peace, as the case may be, to abide the final order in the case; but if neither party give the required bond, the property shall remain in the hands of the officer, unless it be perishable or expensive to keep, in which case it shall be sold, as such property seized under attachment is sold, and the proceeds of the sale shall be disposed of according to the rights of the parties.

SECTION 4. Section 91-31-15, Mississippi Code of 1972, is amended as follows:

91-31-15. (1) Partition alternatives. (a) If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to Section 91-31-13, or if after conclusion of the buyout under Section 91-31-13, a cotenant remains that has requested partition in kind, the court shall order partition in kind unless the court, after consideration of the factors listed in Section 91-31-17, finds that partition in kind will result in manifest prejudice to the cotenants as a group. In considering whether to order partition in kind, the court shall approve a request by two (2) or more parties to have their individual interests aggregated.

(b) If the court does not order partition in kind under subsection (a), the court shall order partition by sale pursuant to Section 91-31-19 or, if no cotenant requested partition by sale, the court shall dismiss the action.

(c) If the court orders partition in kind pursuant to subsection (a), the court may require that one or more cotenants pay one or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held.

(d) If the court orders partition in kind, the court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out pursuant to Section 91-31-13, a part of the property representing the combined interests of these cotenants as determined by the court and this part of the property shall remain undivided.

(2) The court may, in its discretion, order any joint tenant, tenant in common, or coparcener, or any other person who is on the land to leave the land and remove all of his or her own property from the land. If any person fails to leave the land as ordered, the court may order the sheriff of the county in which the land is located to remove the person and the person's possessions.

SECTION 5. This act shall take effect and be in force from and after July 1, 2023.