House Bill 48

(As Passed the House)

AN ACT TO AUTHORIZE PROPERTY OWNERS IN A RESIDENTIAL SUBDIVISION THAT IS NOT GOVERNED BY A HOMEOWNERS ASSOCIATION TO ESTABLISH OR AMEND COVENANTS, CONDITIONS, AND RESTRICTIONS, INCLUDING THOSE THAT RUN WITH THE LAND; TO AUTHORIZE PROPERTY OWNERS IN A RESIDENTIAL SUBDIVISION THAT IS GOVERNED BY A HOMEOWNERS ASSOCIATION, TO ESTABLISH AND AMEND COVENANTS, CONDITIONS, AND RESTRICTIONS, INCLUDING THOSE THAT RUN WITH THE LAND; TO REQUIRE SUCH PROPERTY OWNERS TO FILE A PETITION THAT IS SIGNED BY A MAJORITY OF THE PROPERTY OWNERS TO ESTABLISH AND/OR AMEND COVENANTS, CONDITIONS AND RESTRICTIONS, IF NECESSARY; TO REQUIRE NOTICE OF THE HEARING ON SUCH PETITION TO BE PROVIDED THROUGH PUBLICATION; TO PROVIDE THAT IF THE CHANCELLOR FINDS THAT THE PETITION IS WELL TAKEN THEN HE OR SHE SHALL ENTER A DECREE ACCORDINGLY, WHICH SHALL BE FILED WITH THE CHANCERY CLERK; TO BRING FORWARD SECTIONS 17-1-23, 19-5-10, 21-19-63 AND 89-1-69, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.

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

SECTION 1. (1) Property owners in a residential subdivision that has been platted in accordance with Section 17-1-23, and that is not governed by a homeowners association may, acting through a majority vote of such owners, provided that each plat of real property shall only be entitled to one (1) vote without regard to the number of individuals who possess an ownership interest in such property, establish or amend covenants, conditions, and restrictions, including those that run with the land, as provided in this section.

(2) (a) Property owners in such a residential subdivision that has existing covenants, conditions, and restrictions, who seek to establish additional covenants, conditions, and restrictions, or amend the existing, covenants, conditions, and restrictions under subsection (1) of this section, shall file a petition with the chancery court of the county where the existing covenants, conditions, and restrictions were initially filed.

(b) In such a residential subdivision where no covenants, conditions, and restrictions exist, property owners in such a residential subdivision who seek to establish covenants, conditions, and restrictions under subsection (1) of this section,

shall file a petition with the chancery court of the county where the subdivision is located.

(3) After filing such petition to amend and/or establish covenants, conditions, and restrictions, the chancellor shall set a day, either in term time or in vacation, for the hearing of the petition, and notice shall be given to all persons interested in, affected by, or having objections to the petition, indicating that the hearing on the petition will be held on the day fixed by the chancellor, and that all such persons will have the right to appear and enter their objections, if any, to the proposed petition.

Such notice shall be given by publication in a newspaper published or having a general circulation in the county where the subdivision is located once each week for three (3) consecutive weeks, and by posting a copy of such notice at all entrances to the subdivision from a public road, as denoted on the official plat of the subdivision.

The first publication of such notice and the posted notice shall be made at least thirty (30) days prior to the day fixed for the hearing of the petition, and such notice shall describe the subdivision by name as the same appears on the official plat filed in the land records of the county and the plat book or cabinet and page where filed.

(4) At the time fixed, the chancellor shall proceed to hear all evidence offered in support of the petition, together with all objections, if any, that may be presented touching or bearing upon the relief requested. If the chancellor finds from the evidence that the proposed petition, in whole or in part, is well taken then he or she shall enter a decree accordingly, which shall be filed with the chancery clerk, and shall be denoted by him or her in the official plat book of the county for the subdivision at issue and in such other places where matters relating to covenants, conditions, and restrictions for subdivisions are filed.

SECTION 2. (1) Property owners in a residential subdivision that has been platted in accordance with Section 17-1-23, and that is governed by a homeowners association, may establish and amend covenants, conditions, and restrictions, including those that run with the land, as provided in this section, and further provided that each plat of real property shall only be entitled to one (1) vote in any such election to establish or amend covenants, conditions and restrictions of the subdivision without regard to the number of individuals who possess an ownership interest in such property, in accordance with subsections (2) through (5) of this Section 2.

(2) (a) If the governing documents for the homeowners' association of such a residential subdivision provide a process for establishing and amending existing covenants, conditions, and restrictions, property owners in the residential subdivision who seek to exercise the authority granted under subsection (1) of this section shall comply with the applicable provisions in the governing documents.

(b) Such governing documents, as provided in paragraph (a) of this subsection (2), must be unexpired in order to be valid and enforceable for the purposes of this act, and any covenants, conditions, or restrictions established or amended, pursuant to governing documents that are expired, shall be void and unenforceable.

(3) (a) If the governing documents for the homeowners' association of such a residential subdivision do not provide a process for establishing and amending covenants, conditions, and restrictions, property owners in a residential subdivision that has existing covenants, conditions, and restrictions, who seek to establish additional covenants, conditions, and restrictions, or amend the existing covenants, conditions, and restrictions under subsection (1) of this section, shall file a petition with the chancery court of the county where the existing covenants, conditions, and restrictions were initially filed. Such petition shall be signed by a majority of the property owners in the residential subdivision.

(b) If the governing documents for the homeowners' association of such a residential subdivision do not provide a process for establishing and amending covenants, conditions, and restrictions, property owners in a residential subdivision where no covenants, conditions, and restrictions exist, who seek to establish covenants, conditions, and restrictions under subsection (1) of this section, shall file a petition with the chancery court of the county where the subdivision is located. Such petition shall be signed by a majority of the property owners in the residential subdivision.

(4) After filing such petition to amend and/or establish covenants, conditions and restrictions, the chancellor shall set a day, either in term time or in vacation, for the hearing of the petition, and notice shall be given to all persons interested in, affected by, or having objections to the petition, that the hearing on the petition will be held on the day fixed by the chancellor and that all such persons will have the right to appear and enter their objections, if any, to the proposed petition.

The notice shall be given by publication in a newspaper published or having a general circulation in the county where the subdivision is located once each week for three (3) consecutive weeks, and by posting a copy of such notice at all entrances to the subdivision from a public road as denoted on the official plat of the subdivision.

(5) At the time fixed, the chancellor shall proceed to hear all evidence offered in support of the petition, together with all objections, if any, that may be presented touching or bearing upon the relief requested. If the chancellor finds from the evidence that the proposed petition, in whole or in part, is well taken then he or she shall enter a decree accordingly, which shall be filed with the chancery clerk and shall be denoted by him or her in the official plat book of the county for the subdivision at issue and in such other places where matters relating to covenants, conditions, and restrictions for subdivisions are filed.

(6) The provisions of Section 2 of this act shall not apply to any municipality in which Yacht Club Drive passes over Interstate 10.

SECTION 3. Section 17-1-23, Mississippi Code of 1972, is brought forward as follows:

17-1-23. (1) When new subdivisions are laid out, the governing authority of each municipality or county may, before allowing dedication, impose such terms as may be deemed necessary to make the provisions of Sections 17-1-1 through 17-1-27, inclusive, effective, and such governing authorities may receive easements in the land affected whereby such sections may be made effective.

(2) The board of supervisors of any county may order that no plat of a subdivision shall be recorded until it has been approved by the board of supervisors, and the board of supervisors shall have power to require the installation of utilities and laying out of streets in subdivisions or to accept performance bonds in lieu thereof; the board of supervisors of any county bordering on the State of Tennessee having a population of more than sixty-seven thousand nine hundred (67,900) but less than seventy thousand (70,000) according to the 1990 federal census and having a land area of more than four hundred seventy (470) square miles but less than five hundred (500) square miles may also, in lieu thereof, require the deposit of monies with the county which shall be placed in a special interest-bearing account in the county treasury, and such board of supervisors at the appropriate time shall spend monies from such account solely for the purpose of constructing or improving the roads and other infrastructure within the subdivision with respect to which the deposit or deposits were made.

(3) The governing authorities of a municipality may provide that any person desiring to subdivide a tract of land within the corporate limits shall submit a map and plat of such subdivision, and a correct abstract of title of the land platted, to said governing authorities, to be approved by them before the same shall be filed for record in the land records of the county; and where the municipality has adopted an ordinance so providing, no such map or plat of any such subdivision shall be recorded by the chancery clerk unless same has been approved by said governing authorities. In all cases where a map or plat of the subdivision is submitted to the governing authorities of a municipality, and is by them approved, all streets, roads, alleys and other public ways set forth and shown on said map or plat shall be thereby dedicated to the public use, and shall not be used otherwise unless and until said map or plat is vacated in the manner provided by law, notwithstanding that said streets, roads, alleys or other public ways have not been actually opened for the use of the public. If any easement dedicated pursuant to the provisions of this section for a street, road, alley or other public purpose is determined to be not needed for the public purpose, the easement may be declared abandoned, and ownership of the fee underlying the easement shall revert, regardless of the date of dedication, to the adjoining property owner or owners at the time of abandonment. Ownership of such easement shall extend to the centerline of said abandoned street, road or public way. Such abandonment and reversion shall not affect any private easements which might exist.

(4) If the owner of any land which shall have been laid off, mapped or platted as a city, town or village, or addition thereto, or subdivision thereof, or other platted area, whether inside or outside a municipality, desires to alter or vacate such map or plat, or any part thereof, he may petition the board of supervisors of the county or the governing authorities of the municipality for relief in the premises, setting forth the particular circumstances of the case and giving an accurate description of the property, the map or plat of which is to be vacated or altered and the names of the persons to be adversely affected thereby or directly interested therein. However, before taking such action, the parties named shall be made aware of the action and must agree in writing to the vacation or alteration. Failure to gain approval from the parties named shall prohibit the board of supervisors or governing authorities from altering or vacating the map or plat, or any part thereof. Any alterations of a plat or map must be recorded in the appropriate location and a note shall be placed on the original plat denoting the altered or revised plat. No land shall be subdivided nor shall the map or plat of any land be altered or vacated in violation of any duly recorded covenant running with the land. Any municipality which shall approve such a vacation or alteration pursuant to this section shall be exempt from the sale of surplus real property provisions as set forth in Section 21-17-1.

(5) Subdivision regulation under this section shall not conflict with Article VII of the Chickasaw Trail Economic Development Compact described in Section 57-36-1.

SECTION 4. Section 19-5-10, Mississippi Code of 1972, is brought forward as follows:

19-5-10. (1) The board of supervisors of any county is authorized to enter into one or more development agreements with the developer or developers of a master planned community in order to authorize, in addition to any other matters to which the board of supervisors may lawfully obligate the county, the master planned community, through a community self-governing entity created by the owners of the property, to administer, manage and enforce the land use restrictions and covenants, land use regulations, subdivision regulations, building codes and regulations, and any other limitations and restrictions on land and buildings provided in the master plan for the master planned community, in lieu of the real estate and property owners within the master planned community being subject to the county ordinances and regulations pertaining to buildings, subdivisions, zoning, the county's comprehensive plan, and any other county ordinances and regulations pertaining thereto. Prior to entering into any such development agreement, the board of supervisors shall review the master plan for the master planned community and find that the provisions of the master plan providing for regulations, restrictions, covenants and limitations pertaining to building, subdivisions, zoning and comprehensive planning shall be comparable to, or greater than, similar provisions in the ordinances and regulations of the county. The term of such a development agreement may be not more than thirty (30) years or the number of years allowed in the county's subdivision ordinance for terms of subdivision covenants, whichever is greater. The development agreement shall have attached to it a boundary survey made by a registered land surveyor, and upon approval of the development agreement by the board of supervisors, the boundary survey shall be recorded in the land records of the chancery clerk of the county. The recorded boundary survey shall serve as the description of the property within the master planned community which shall not be subject to the county's zoning map, and the county's zoning map shall simply recognize the territory described in such boundary survey as a "master planned community." Whenever there may be a conflict between the county ordinances and regulations pertaining to buildings, subdivisions, zoning, the county's comprehensive plan, and any other county ordinances and regulations pertaining thereto, and the provisions of such a development agreement, including the provisions of the master plan providing for regulations, restrictions, covenants and limitations pertaining to buildings, subdivisions, zoning and comprehensive planning, the provisions of the development agreement shall prevail if the provisions of the development agreement are comparable to or greater than similar provisions of county ordinances and regulations.

(2) As used in this section, the term "master planned community" means a development by one or more developers of real estate consisting of residential, commercial, educational, health care, open space and recreational components that is developed pursuant to a long range, multiphase master plan providing comprehensive land use planning and staged implementation and development and the master plan must include the following minimum provisions:

(a) The real estate described in the master plan must consist of not less than two thousand five hundred (2,500) acres. The master plan may require that not less than fifty percent (50%) of the total dwelling units planned for such acreage must be:

(i) Dwelling units within a certified retirement community certified by the Mississippi Development Authority; or

(ii) Dwelling units where at least one (1) occupant:

1. Is sixty-two (62) years of age; or

2. Receives pension income reported on his or her most recent federal income tax return filed prior to occupancy; or

3. Declares himself to be retired.

(b) The real estate described in the master plan must be subjected to a set of land use restrictions imposed by deed restriction or restrictive covenants recorded by the developer in the land records of the chancery clerk of the county as land is developed and sold in phases to users. Such restrictions shall include design guidelines and standards that provide for:

(i) Internal community self-governance by the owners of the property;

(ii) The establishment of one or more legal persons endowed with the powers, rights and duties to administer, manage, own and maintain common areas, establish community activities and enforce the land use restrictions on the common areas and private property; and

(iii) The establishment of assessments and lien rights to fund amenities, services and maintenance of common areas.

(c) The real estate described in the master plan must be within the territorial boundaries of one or more public utility districts established by the county for the provision of water and sewer facilities and water and sewer services.

(3) The master plan for a master planned community shall be subject to modification from time to time by the original owner or owners of the real estate described in the initial master plan, its affiliates, successors or assigns to meet changing economic and market conditions; provided, however, any such modifications in the master plan which materially change the regulations, restrictions, covenants and limitations pertaining to buildings, subdivisions and land use regulations approved in the development agreement, or which significantly change the overall plan concept, shall be subject to, and shall not take effect until, approved by the board of supervisors of the county.

(4) As used in this section, the term "dwelling unit" means single-family residences, apartments or other units within a multifamily residence, or a room or apartment in a nursing home or congregate-care facility.

SECTION 5. Section 21-19-63, Mississippi Code of 1972, is brought forward as follows:

21-19-63. The governing authorities of municipalities may provide that any person desiring to subdivide a tract of land within the corporate limits shall submit a map and plat of such subdivision, and a correct abstract of title of the land platted, to said governing authorities, to be approved by them before the same shall be filed for record in the land records of the county. Where the municipality has adopted an ordinance so providing, no such map or plat of any such subdivision shall be recorded by the chancery clerk unless same has been approved by said governing authorities. In all cases where a map or plat of the subdivision is submitted to the governing authorities of a municipality, and is by them approved, all streets, roads, alleys and other public ways set forth and shown on said map or plat shall be thereby dedicated to the public use, and shall not be used otherwise unless and until said map or plat is vacated in the manner provided by law, notwithstanding that said streets, roads, alleys or other public ways have not been actually opened for the use of the public. If any easement dedicated pursuant to the provisions of this section for a street, road, alley or other public purpose is determined to be not needed for the public purpose, the easement may be declared abandoned, and ownership of the fee underlying the easement shall revert, regardless of the date of dedication, to the adjoining property owner or owners at the time of abandonment. Ownership of the easement shall extend to the centerline of said abandoned street, road or public way. Such abandonment and reversion shall not affect any private easements which might exist.

SECTION 6. Section 89-1-69, Mississippi Code of 1972, is brought forward as follows:

89-1-69. (1) In this section, "property owners' association" means an incorporated or unincorporated association that:

(a) Is designated as the representative of the owners of property in a subdivision;

(b) Has a membership primarily consisting of the owners of the property covered by the dedicatory instrument for the subdivision; and

(2) A deed restriction or other covenant running with the land applicable to the conveyance of real property that requires a transferee of real property or the transferee's heirs, successors, or assigns to pay a declarant or other person imposing the deed restriction or covenant on the property or a third party designated by a transferor of the property a fee in connection with a future transfer of the property is prohibited. A deed restriction or other covenant running with the land that violates this section or a lien purporting to encumber the land to secure a right under a deed restriction or other covenant running with the land that violates this section is void and unenforceable. For purposes of this section, a conveyance of real property includes a conveyance or other transfer of an interest or estate in real property.

(3) This section does not apply to a deed restriction or other covenant running with the land that requires a fee associated with the conveyance of property in a subdivision that is payable to:

(a) A property owners' association that manages or regulates the subdivision or the association's managing agent if the subdivision contains more than one (1) platted lot and the right to collect a fee in connection with a future transfer of the property is evidenced by a deed restriction or covenant running with the land filed in the public land records;

(b) An entity organized under Section 501(c)(3), Internal Revenue Code of 1986 if the entity has a right to collect a fee in connection with a future transfer of the property evidenced by a deed restriction or covenant running with the land filed in the public land records; or

SECTION 7. This act shall take effect and be in force from and after July 1, 2024.