MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary A

By: Representative Snowden

AN ACT TO CREATE THE MISSISSIPPI MARKETABLE RECORD TITLE ACT; TO DEFINE CERTAIN TERMS; TO PROVIDE FOR MARKETABLE RECORD TITLE AND THE SUSPENSION OF APPLICABILITY; TO PROVIDE EXCEPTIONS TO MARKETABILITY; TO PROVIDE FOR INTERESTS EXTINGUISHED BY MARKETABLE TITLE; TO PROVIDE FOR THE FILING OF NOTICE; TO SPECIFY THE CONTENTS OF NOTICE; TO PROVIDE FOR LIMITATIONS OF ACTIONS AND RECORDING ACTS; TO PROHIBIT THE FILING OF FALSE CLAIMS; TO PROVIDE FOR AN EXTENSION OF THE 30-YEAR PERIOD; AND FOR RELATED PURPOSES.

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

SECTION 1. This act shall be referred to as the "Mississippi Marketable Record Title Act."

SECTION 2. The following words and phrases shall have the meanings ascribed herein, unless the context clearly indicates otherwise:

(a) "Person" as used herein denotes singular or plural, natural or corporate, private or governmental, including the state and any political subdivision or agency thereof, as the context for the use thereof requires or denotes.

(b) "Root of title" means any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least thirty (30) years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it was recorded.

(c) "Title transaction" means any recorded instrument or court proceeding which affects title to any estate or interest in land and which describes the land sufficiently to identify its location and boundaries.

SECTION 3. Any person having the legal capacity to own land in this state, who, alone or together with his or her predecessors in title, has been vested with any estate in land of record for thirty (30) years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in Section 4 of this act. A person shall have a marketable record title when the public records disclose a record title transaction affecting the title to the land which has been of record for not less than thirty (30) years purporting to create such estate either in:

(a) The person claiming such estate; or

(b) Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.

SECTION 4. Such marketable record title shall not affect or extinguish the following rights:

(a) Estate or interest, easements and use restrictions disclosed by and defects inherent in the muniments of the title on which said estate is based beginning with the root of title; provided, however, that a general reference in any of such mumiments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions of paragraph (e).

(b) Estates, interests, claims or charges, or any covenant or restriction, preserved by the filing of a proper notice in accordance with the provision hereof.

(c) Rights of any person in possession of the lands, so long as such person is in such possession.

(d) Estates, interests, claims or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.

(e) Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof. No notice need be filed in order to preserve the lien of any mortgage or deed of trust or any supplement thereto encumbering any such recorded or unrecorded easements, or rights, interest or servitude in the nature of easements, rights-of-way and terminal facilities. However, nothing herein shall be construed as preserving to the mortgagee or grantee of any such mortgage or deed of trust or any supplement thereto any greater rights than the rights of the mortgagor or grantor.

(f) Rights of any person in whose name the land is assessed on the county tax rolls for such period of time as the land is so assessed and which rights are preserved for a period of three (3) years after the land is last assessed in such person's name.

(g) State title to lands beneath navigable waters acquired by virtue of sovereignty

SECTION 5. Subject to the matters stated in Section 4 of this act, such marketable record title shall be free and clear of all estates, interest, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. All such estates, interests, claims or charges, however denominated, whether such estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person is within or without the state, whether such person is natural or corporate, or is private or governmental, are hereby declared to be null and void, except that this act shall not be deemed to affect any right, title or interest of the United States, the State of Mississippi, or any of its officers, boards, commissions or other agencies reserved in the patent or deed by which the United States, the State of Mississippi or any of its agencies parted with title.

SECTION 6. (1) Any person claiming an interest in land or desiring to preserve any covenant or restriction or any portion of a covenant or restriction may preserve and protect the same from extinguishment by the operation of this act by filing for record, during the thirty-year period immediately following the effective date of the root of title, a notice, in writing, in accordance with the provisions hereof, which notice shall have the effect of so preserving such claim of right or such covenant or restriction or portion of such covenant or restriction for a period of not longer than thirty (30) years after filing the same unless again filed as required herein. No disability or lack of knowledge of any kind on the part of anyone shall delay the commencement of or suspend the running of said thirty-year period. Such notice may be filed for record by the claimant or by any other person acting on behalf of any claimant who is:

(a) Under a disability,

(b) Unable to assert a claim on his or her behalf, or

(c) One (1) of a class, but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record.

(2) It shall not be necessary for the owner of the marketable record title, as herein defined, to file a notice to protect his or her marketable record title.

SECTION 7. (1) To be effective, the notice referred to in this act shall contain:

(a) The name or description of the claimant desiring to preserve a claim or any covenant or restriction and the name and particular post office address of the person filing the notice.

(b) The name and post office address of an owner, or the name and post office address of the person in whose name said property is assessed on the last completed tax assessment roll of the county at the time of filing, who, for the purpose of such notice, shall be deemed to be an owner.

(c) A full and complete description of all land affected by such notice, which description shall be set forth in particular terms and not by general reference, but if said claim is founded upon a recorded instrument or a covenant or a restriction, then the description in such notice may be the same as that contained in such recorded instrument or covenant or restriction, provided the same shall be sufficient to identify the property.

(d) A statement of the claim showing the nature, description and extent of such claim or, in the case of a covenant or restriction, a copy of the covenant or restriction, except that it shall not be necessary to show the amount of any claim for money or the terms of payment.

(e) If such claim is based upon an instrument of record or a recorded covenant or restriction, such instrument shall be sufficiently described to identify the same, including reference to the book and page in which the same is recorded.

(f) Such notice shall be acknowledged in the same manner as deeds are acknowledged for record.

(2) Such notice shall be filed with the Chancery Clerk of the county or counties where the land described therein is situated. The clerk shall enter, record and index said notice in the same manner that deeds are entered, recorded and indexed, as though the claimant were the grantee in the deed and the purported owner were the grantor in a deed, and the clerk shall charge the same fees for recording thereof as are charged for recording deeds.

(3) The chancery clerk shall, upon such filing, mail by registered or certified mail to the purported owner of said property, as stated in such notice, a true copy thereof and shall enter on the original, before recording the same, a certificate showing such mailing. For preparing the certificate, the claimant shall pay to the clerk a service charge in the sum of One Dollar ($1.00), plus the actual postage cost for the mailing, in addition to the regular recording charges for the recordation of land deeds, and together with regular charges for all photocopies, if any, necessary to comply with this section. If the notice names purported owners having more than one (1) address, the person filing the same shall furnish a true copy for each of the several addresses stated, and the clerk shall send one (1) such copy to the purported owners named at each respective address. Such certificate shall be sufficient if the same reads substantially as follows:

(4) Failure of any purported owner to receive the mailed notice shall not affect the validity of the notice or vitiate the effect of the filing of such notice.

SECTION 8. Nothing contain in this act shall be construed to extend the period for the bringing of an action or for the doing of any other act required under any statute of limitations or to affect the operation of any statute governing the effect of the recording or the failure to record any instrument affecting land. This law shall not vitiate any curative statute.

SECTION 9. No person shall use the privilege of filing notices under this act for the purpose of asserting false or fictitious claims to land; and in any action relating thereto if the court shall find that any person has filed a claim when such person either knew or reasonably should have known such claim to be false or fictitious, the court shall award to the prevailing party all costs incurred by her or him in such action, including a reasonable attorney's fee, and in addition thereto may award to the prevailing party all damages that he or she may have sustained as a result of the filing of such notice of claim.

SECTION 10. If the thirty-year period for filing notice under the provisions of this act shall have expired prior to July 1, 2002, such period shall be extended to July 1, 2002.

SECTION 11. Any person whose interest in land is derived from an instrument or court proceeding recorded subsequent to the root of title, which instrument or proceeding did not contain a description of the land in the manner as specified herein, and whose interest had not been extinguished prior to July 1, 2002, shall have until July 1, 2004, to file a notice in accordance with this chapter to preserve the interest.

SECTION 12. 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 of this act, subject only to such limitations as appear in Section 4 of this act. This act shall be supplemental to all general laws involving titles.

SECTION 13. This act shall take effect and be in force from and after July 1, 2001.