MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary A
By: Representatives Touchstone, Aguirre, Sanford, Tullos, White
AN ACT TO CREATE THE MARKETABLE RECORD TITLE ACT; TO PROVIDE CERTAIN DEFINITIONS; TO PROVIDE THAT A PERSON HAS MARKETABLE TITLE IF THE PERSON HAS AN UNBROKEN CHAIN OF TITLE FOR 32 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 SUCH INTEREST DURING THE 32-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 32-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 89-5-5, MISSISSIPPI CODE OF 1972, IN CONFORMITY WITH THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following terms shall have the ascribed meanings, unless the context clearly indicates otherwise:
(a) "Conveyance" means a transfer of real estate other than by will or operation of law.
(b) "Document" means a writing, plat or map and includes information in electronic, mechanical or magnetic storage; microfilm; electronic data transmission signals; and other media that can be converted into a legible writing, plat or map by a machine or device.
(c) "Effective date of root of title" means the date on which the root of title is recorded.
(d) "Law" includes statutes, case law, administrative actions and legislative acts of local government.
(e) "Marketable record title" means a title of record, complying with Section 3 of this act, that operates to extinguish interests and claims existing before the effective date of the root of title, as provided in Section 5 of this act.
(f) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity.
(g) "Real estate" means an estate or interest in, over or under land, including minerals, structures, fixtures and other things that by custom, usage or law pass with a conveyance of land though 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. The term includes rents and the interest of a landlord or tenant.
(h) "Record" used as a verb, means to present to the chancery clerk for the place in which the land is situated a document that the chancery clerk accepts and either enters in a daily log or notes thereon an identifying number, whether or not under applicable law the chancery clerk is directed to file the document or otherwise to maintain record of it. Recorded and recording have corresponding meanings.
(i) "Record chain of title" means the series of recorded documents creating or evidencing rights of the successive holders of title to real estate.
(j) "Record location" means the location by book and page, instrument number, electronic retrieval code or other specific place of a document in the public records accessible in the same recording office in this state where the document containing the reference to the location is found.
(k) "Recording office" means the office of the chancery clerk of the county where the real estate is situated.
(l) "Records" includes probate and other official records available in the recording office.
(m) "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 or lien.
(n) "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 most recent to be recorded as of a date
thirty-two (32) years before the time marketability is being determined.
(o) "Signed" includes the use of a symbol executed or adopted by a party with present intention to authenticate a writing.
(p) "Title" means the right to an interest in real estate, including the interest of an owner, lessee, possessor, lienor, holder of a security interest and beneficiary of a restriction including an owner of an easement.
(q) "Title transaction" means a transaction purporting to affect title to real estate, including title by will or descent, by tax deed, by trustee's, referee's, guardian's, executor's, administrator's, master in chancery's or sheriff's deed, by decree of a court, by warranty deed, by quitclaim deed and by a security interest.
(r) "Utility easement" means an easement: (i) of way for a railroad, subway, street railway or trolley bus line; (ii) for the transmission line for the transmission of electricity, electronic communications, water, oil, gas or other goods; (iii) for sewage or drainage; or (iv) for similar utility uses.
(s) "Writing" includes printing; typewriting; electronic, mechanical or magnetic storage; microfilm; electronic data transmission signals; and any other intentional reduction of language to tangible from that can be converted into legible form by a machine or device.
SECTION 2. (1) Any person who has an unbroken chain to 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.
(2) 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 purports to create the interest in or contains language sufficient to transfer the interest to:
(a) The person claiming the interest; or
(b) Some other person from whom, by one or more conveyance or other title transactions of record, the purported interest has become vested in the person claiming the interest.
(3) If anything appears of record, in either case described in subsection (2) of this section, purporting to divest the claimant of the purported interest, the chain of title is broken.
SECTION 3. The marketable record title is subject to:
(a) All interests and defects that are apparent in the root of title or inherent in the other muniments of which the claim of record is formed, but a general reference in a muniment to an easement, restriction, encumbrance or other interest created before the effective date of the root of title is not sufficient to preserve it unless a reference by record location is made in the muniment to a recorded title transaction that created the easement, restriction, encumbrance or other interest;
(b) All interests preserved by the recording of proper notice of intent to preserve an interest;
(c) All interests arising out of title transaction recorded after the effective date of the root of title, and which have not been previously extinguished; and
(d) All interests preserved under Section 7 of this act.
SECTION 4. (1) In this section, "person dealing with the real estate" includes a purchaser of real estate, the taker of a security interest, a levying or attaching creditor, a real estate contract vendee or another person seeking to acquire an estate or interest therein, or impose a lien thereon.
(2) Subject to Section 4 of this act, a marketable record title is held by its owner and is taken by a person dealing with the real estate 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 governmental, are null and void.
(3) Recording an interest after the effective date of the root of title does not revive an interest previously extinguished.
SECTION 5. (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) 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 such 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 signing claims to be the owner or to be acting on behalf of the owner.
(3) A notice recorded to preserve a utility easement claimed in the real estate of another may include a map incorporating the claim.
SECTION 6. (1) This act does not bar:
(a) A restriction, the existence of which is clearly observable by physical evidence of its use;
(b) A use or occupancy inconsistent with the marketable record title, to the extent that the use or occupancy would have been revealed by reasonable inspection or inquiry;
(c) Rights of a person in whose name the real estate or an interest therein was carried on the real property tax rolls within three (3) years before marketability is to be determined, if the relevant tax rolls are accessible to the public when marketability is to be determined;
(d) Any utility easement;
(e) Any right, title or interest of the United States, or of the State of Mississippi, or any political subdivision or agency thereof; and
(f) Oil, gas, sulphur, coal and all other mineral interests, whether similar or dissimilar to those minerals specifically named.
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 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. This act does not preclude a court from determining that an interest has been abandoned in fact, whether before or after a notice of intent to preserve it has been recorded.
SECTION 10. (1) Unless a reference in a document is a reference 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 too indefinite 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"; and
(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) A contractual obligation or condition between the immediate parties to the document in which the reference occurs; or
(b) 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 applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.
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 after its effective date, the period during which the proceeding may be brought is extended until two (2) years have expired 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 two (2) years after the effective date of this act. The notice has the effect provided in Section 6 of this act.
SECTION 13. Sections 1 through 13 of this act shall be known and may be cited as the Marketable Record Title Act.
SECTION 14. Section 89-5-5, Mississippi Code of 1972, is amended as follows:
89-5-5. Subject to the provisions of Sections 1 through 13 of this act, every conveyance, covenant, agreement, bond, mortgage, and deed of trust shall take effect, as to all creditors and subsequent purchasers for a valuable consideration without notice, only from the time when delivered to the clerk to be recorded; and no conveyance, covenant, agreement, bond, mortgage, or deed of trust which is unrecorded or has not been filed for record, shall take precedence over any similar instrument affecting the same property which may be of record, to the end that with reference to all instruments which may be filed for record under this section, the priority thereof shall be governed by the priority in time of the filing of the several instruments, in the absence of actual notice.
SECTION 15. This act shall take effect and be in force from and after July 1, 2017.