Florida Senate - 2020 SB 580 By Senator Bracy 11-00510A-20 2020580__ 1 A bill to be entitled 2 An act relating to the Uniform Partition of Heirs 3 Property Act; designating part I of ch. 64, F.S., 4 entitled “General Provisions”; creating part II of ch. 5 64, F.S., entitled “Uniform Partition of Heirs 6 Property Act”; creating s. 64.201, F.S.; providing a 7 short title; creating s. 64.202, F.S.; defining terms; 8 creating s. 64.203, F.S.; providing applicability; 9 providing requirements relating to the court 10 determination of heirs property; specifying the 11 relation of the act to other law; creating s. 64.204, 12 F.S.; providing for service and notice; creating s. 13 64.205, F.S.; providing for appointment and 14 qualifications of commissioners; creating s. 64.206, 15 F.S.; providing for the determination of property 16 value; creating s. 64.207, F.S.; providing for buyout 17 of cotenants; creating s. 64.208, F.S.; providing for 18 alternatives to partition; creating s. 64.209, F.S.; 19 providing factors to be considered in determining 20 whether partition in kind may be ordered; creating s. 21 64.210, F.S.; providing for sale of property through 22 open-market sale, sealed bids, or auction; creating s. 23 64.211, F.S.; providing requirements for reporting of 24 an open-market sale of property; creating s. 64.212, 25 F.S.; providing for uniformity of application and 26 construction; creating s. 64.213, F.S.; specifying the 27 relation of the act to the Electronic Signatures in 28 Global and National Commerce Act; providing an 29 effective date. 30 31 Be It Enacted by the Legislature of the State of Florida: 32 33 Section 1. Sections 64.011, 64.022, 64.031, 64.041, 64.051, 34 64.061, 64.071, 64.081, and 64.091, Florida Statutes, are 35 designated as part I of chapter 64, Florida Statutes, and 36 entitled “General Provisions.” 37 Section 2. Part II of chapter 64, Florida Statutes, 38 consisting of sections 64.201, 64.202, 64.203, 64.204, 64.205, 39 64.206, 64.207, 64.208, 64.209, 64.210, 64.211, 64.212, and 40 64.213, is created to read: 41 PART II 42 UNIFORM PARTITION OF HEIRS PROPERTY ACT 43 64.201 Short title.—This part may be cited as the “Uniform 44 Partition of Heirs Property Act”. 45 64.202 Definitions.—As used in this part, the term: 46 (1) “Ascendant” means an individual who precedes another 47 individual in lineage, in the direct line of ascent from the 48 other individual. 49 (2) “Collateral” means an individual who is related to 50 another individual under the law of intestate succession of this 51 state but who is not the other individual’s ascendant or 52 descendant. 53 (3) “Descendant” means an individual who follows another 54 individual in lineage, in the direct line of descent from the 55 other individual. 56 (4) “Determination of value” means a court order 57 determining the fair market value of heirs property under s. 58 64.206 or s. 64.210 or adopting the valuation of the property 59 agreed to by all cotenants. 60 (5) “Heirs property” means real property held in tenancy in 61 common which satisfies all of the following requirements as of 62 the filing of a partition action: 63 (a) There is no agreement in a record binding all the 64 cotenants which governs the partition of the property; 65 (b) One or more of the cotenants acquired title from a 66 relative, whether living or deceased; and 67 (c) Any of the following applies: 68 1. Twenty percent or more of the interests are held by 69 cotenants who are relatives; 70 2. Twenty percent or more of the interests are held by an 71 individual who acquired title from a relative, whether living or 72 deceased; or 73 3. Twenty percent or more of the cotenants are relatives. 74 (6) “Partition by sale” means a court-ordered sale of the 75 entire heirs property, whether by open-market sale, sealed bids, 76 or auction conducted under s. 64.210. 77 (7) “Partition in kind” means the division of heirs 78 property into physically distinct and separately titled parcels. 79 (8) “Record” means information that is inscribed on a 80 tangible medium or that is stored in an electronic or other 81 medium and is retrievable in perceivable form. 82 (9) “Relative” means an ascendant, descendant, or 83 collateral or an individual otherwise related to another 84 individual by blood, marriage, adoption, or law of this state 85 other than this part. 86 64.203 Applicability; relation to other law.— 87 (1) This part applies to partition actions filed on or 88 after July 1, 2020. 89 (2) In an action to partition real property under part I of 90 this chapter, the court shall determine whether the property is 91 heirs property. If the court determines that the property is 92 heirs property, the property must be partitioned under this part 93 unless all of the cotenants otherwise agree in a record. 94 (3) This part supplements part I of this chapter and, if an 95 action is governed by this part, replaces provisions of part I 96 of this chapter that are inconsistent with this part. 97 64.204 Service; notice by posting.— 98 (1) This part does not limit or affect the method by which 99 service of a complaint in a partition action may be made. 100 (2) If the plaintiff in a partition action seeks notice by 101 publication and the court determines that the property may be 102 heirs property, the plaintiff, not later than 10 days after the 103 court’s determination, shall post, and maintain while the action 104 is pending, a conspicuous sign on the property that is the 105 subject of the action. The sign must state that the action has 106 commenced and must identify the name and address of the court 107 and the common designation by which the property is known. The 108 court may require the plaintiff to publish on the sign the name 109 of the plaintiff and the known defendants. 110 64.205 Commissioners.—If the court appoints commissioners 111 pursuant to s. 64.061, each commissioner, in addition to the 112 requirements and disqualifications applicable to commissioners 113 in part I of this chapter, must be disinterested and impartial 114 and not a party to or a participant in the action. 115 64.206 Determination of value.— 116 (1) Except as otherwise provided in subsections (2) and 117 (3), if the court determines that the property that is the 118 subject of a partition action is heirs property, the court shall 119 determine the fair market value of the property by ordering an 120 appraisal pursuant to subsection (4). 121 (2) If all cotenants have agreed to the value of the 122 property or to another method of valuation, the court shall 123 adopt that value or the value produced by the agreed method of 124 valuation. 125 (3) If the court determines that the evidentiary value of 126 an appraisal is outweighed by the cost of the appraisal, the 127 court, after an evidentiary hearing, shall determine the fair 128 market value of the property and send notice to the parties of 129 the value. 130 (4) If the court orders an appraisal, the court shall 131 appoint a disinterested real estate appraiser licensed in this 132 state to determine the fair market value of the property 133 assuming sole ownership of the fee simple estate. On completion 134 of the appraisal, the appraiser shall file a sworn or verified 135 appraisal with the court. 136 (5) If an appraisal is conducted pursuant to subsection 137 (4), not later than 10 days after the appraisal is filed, the 138 court shall send notice to each party with a known address, 139 stating: 140 (a) The appraised fair market value of the property. 141 (b) That the appraisal is available at the clerk’s office. 142 (c) That a party may file with the court an objection to 143 the appraisal not later than 30 days after the notice is sent, 144 stating the grounds for the objection. 145 (6) If an appraisal is filed with the court pursuant to 146 subsection (4), the court shall conduct a hearing to determine 147 the fair market value of the property not sooner than 31 days 148 after a copy of the notice of the appraisal is sent to each 149 party under subsection (5), whether or not an objection to the 150 appraisal is filed under paragraph (5)(c). In addition to the 151 court-ordered appraisal, the court may consider any other 152 evidence of value offered by a party. 153 (7) After a hearing under subsection (6), but before 154 considering the merits of the partition action, the court shall 155 determine the fair market value of the property and send notice 156 to the parties of the value. 157 64.207 Cotenant buyout.— 158 (1) If any cotenant requested partition by sale, after the 159 determination of value under s. 64.206, the court shall send 160 notice to the parties that any cotenant except a cotenant that 161 requested partition by sale may buy all the interests of the 162 cotenants that requested partition by sale. 163 (2) Not later than 45 days after the notice is sent under 164 subsection (1), any cotenant, except a cotenant that requested 165 partition by sale, may give notice to the court that it elects 166 to buy all the interests of the cotenants that requested 167 partition by sale. 168 (3) The purchase price for each of the interests of a 169 cotenant that requested partition by sale is the value of the 170 entire parcel determined under s. 64.206 multiplied by the 171 cotenant’s fractional ownership of the entire parcel. 172 (4) After expiration of the period in subsection (2), the 173 following rules apply: 174 (a) If only one cotenant elects to buy all the interests of 175 the cotenants that requested partition by sale, the court shall 176 notify all the parties of that fact. 177 (b) If more than one cotenant elects to buy all the 178 interests of the cotenants that requested partition by sale, the 179 court shall allocate the right to buy those interests among the 180 electing cotenants based on each electing cotenant’s existing 181 fractional ownership of the entire parcel divided by the total 182 existing fractional ownership of all cotenants electing to buy 183 and send notice to all the parties of that fact and of the price 184 to be paid by each electing cotenant. 185 (c) If no cotenant elects to buy all the interests of the 186 cotenants that requested partition by sale, the court shall send 187 notice to all the parties of that fact and resolve the partition 188 action under s. 64.208(1) and (2). 189 (5) If the court sends notice to the parties under 190 paragraph (4)(a) or paragraph (4)(b), the court shall set a 191 date, not sooner than 60 days after the date the notice was 192 sent, by which electing cotenants must pay their apportioned 193 price into the court. After this date, the following rules 194 apply: 195 (a) If all electing cotenants timely pay their apportioned 196 price into court, the court shall issue an order reallocating 197 all the interests of the cotenants and disburse the amounts held 198 by the court to the persons entitled to them. 199 (b) If no electing cotenant timely pays its apportioned 200 price, the court shall resolve the partition action under s. 201 64.208(1) and (2) as if the interests of the cotenants that 202 requested partition by sale were not purchased. 203 (c) If one or more but not all of the electing cotenants 204 fail to pay their apportioned price on time, the court shall 205 give notice to the electing cotenants that paid their 206 apportioned price of the interest remaining and the price for 207 all that interest. 208 (6) Not later than 20 days after the court gives notice 209 pursuant to paragraph (5)(c), any cotenant that paid may elect 210 to purchase all of the remaining interest by paying the entire 211 price into the court. After the 20-day period, the following 212 rules apply: 213 (a) If only one cotenant pays the entire price for the 214 remaining interest, the court shall issue an order reallocating 215 the remaining interest to that cotenant. The court shall issue 216 promptly an order reallocating the interests of all of the 217 cotenants and disburse the amounts held by it to the persons 218 entitled to them. 219 (b) If no cotenant pays the entire price for the remaining 220 interest, the court shall resolve the partition action under s. 221 64.208(1) and (2) as if the interests of the cotenants that 222 requested partition by sale were not purchased. 223 (c) If more than one cotenant pays the entire price for the 224 remaining interest, the court shall reapportion the remaining 225 interest among those paying cotenants, based on each paying 226 cotenant’s original fractional ownership of the entire parcel 227 divided by the total original fractional ownership of all 228 cotenants that paid the entire price for the remaining interest. 229 The court shall issue promptly an order reallocating all of the 230 cotenants’ interests, disburse the amounts held by it to the 231 persons entitled to them, and promptly refund any excess payment 232 held by the court. 233 (7) Not later than 45 days after the court sends notice to 234 the parties pursuant to subsection (1), any cotenant entitled to 235 buy an interest under this section may request the court to 236 authorize the sale as part of the pending action of the 237 interests of cotenants named as defendants and served with the 238 complaint but that did not appear in the action. 239 (8) If the court receives a timely request under subsection 240 (7), the court, after hearing, may deny the request or authorize 241 the requested additional sale on such terms as the court 242 determines are fair and reasonable, subject to the following 243 limitations: 244 (a) A sale authorized under this subsection may occur only 245 after the purchase prices for all interests subject to sale 246 under subsections (1) through (6) have been paid into court and 247 those interests have been reallocated among the cotenants as 248 provided in those subsections. 249 (b) The purchase price for the interest of a nonappearing 250 cotenant is based on the court’s determination of value under s. 251 64.206. 252 64.208 Partition alternatives.— 253 (1) If all the interests of all cotenants that requested 254 partition by sale are not purchased by other cotenants pursuant 255 to s. 64.207, or, if after conclusion of the buyout under s. 256 64.207, a cotenant remains that has requested partition in kind, 257 the court shall order partition in kind unless the court, after 258 consideration of the factors listed in s. 64.209, finds that 259 partition in kind will result in manifest prejudice to the 260 cotenants as a group. In considering whether to order partition 261 in kind, the court shall approve a request by two or more 262 parties to have their individual interests aggregated. 263 (2) If the court does not order partition in kind under 264 subsection (1), the court shall order partition by sale pursuant 265 to s. 64.210 or, if no cotenant requested partition by sale, the 266 court shall dismiss the action. 267 (3) If the court orders partition in kind pursuant to 268 subsection (1), the court may require that one or more cotenants 269 pay one or more other cotenants amounts so that the payments, 270 taken together with the value of the in-kind distributions to 271 the cotenants, will make the partition in kind just and 272 proportionate in value to the fractional interests held. 273 (4) If the court orders partition in kind, the court shall 274 allocate to the cotenants that are unknown, unlocatable, or the 275 subject of a default judgment, if their interests were not 276 bought out pursuant to s. 64.207, a part of the property 277 representing the combined interests of these cotenants as 278 determined by the court and this part of the property shall 279 remain undivided. 280 64.209 Considerations for partition in kind.— 281 (1) In determining under s. 64.208(1) whether partition in 282 kind would result in manifest prejudice to the cotenants as a 283 group, the court shall consider the following: 284 (a) Whether the heirs property practicably can be divided 285 among the cotenants. 286 (b) Whether partition in kind would apportion the property 287 in such a way that the aggregate fair market value of the 288 parcels resulting from the division would be materially less 289 than the value of the property if it were sold as a whole, 290 taking into account the condition under which a court-ordered 291 sale likely would occur. 292 (c) Evidence of the collective duration of ownership or 293 possession of the property by a cotenant and one or more 294 predecessors in title or predecessors in possession to the 295 cotenant who are or were relatives of the cotenant or each 296 other. 297 (d) A cotenant’s sentimental attachment to the property, 298 including any attachment arising because the property has 299 ancestral or other unique or special value to the cotenant. 300 (e) The lawful use being made of the property by a cotenant 301 and the degree to which the cotenant would be harmed if the 302 cotenant could not continue the same use of the property. 303 (f) The degree to which the cotenants have contributed 304 their pro rata share of the property taxes, insurance, and other 305 expenses associated with maintaining ownership of the property 306 or have contributed to the physical improvement, maintenance, or 307 upkeep of the property. 308 (g) Any other relevant factor. 309 (2) The court may not consider any one factor in subsection 310 (1) to be dispositive without weighing the totality of all 311 relevant factors and circumstances. 312 64.210 Open-market sale, sealed bids, or auction.— 313 (1) If the court orders a sale of heirs property, the sale 314 must be an open-market sale unless the court finds that a sale 315 by sealed bids or an auction would be more economically 316 advantageous and in the best interest of the cotenants as a 317 group. 318 (2) If the court orders an open-market sale and the 319 parties, not later than 10 days after the entry of the order, 320 agree on a real estate broker licensed in this state to offer 321 the property for sale, the court shall appoint the broker and 322 establish a reasonable commission. If the parties do not agree 323 on a broker, the court shall appoint a disinterested real estate 324 broker licensed in this state to offer the property for sale and 325 shall establish a reasonable commission. The broker shall offer 326 the property for sale in a commercially reasonable manner at a 327 price no lower than the determination of value and on the terms 328 and conditions established by the court. 329 (3) If the broker appointed under subsection (2) obtains 330 within a reasonable time an offer to purchase the property for 331 at least the determination of value: 332 (a) The broker shall comply with the reporting requirements 333 in s. 64.211; and 334 (b) The sale may be completed in accordance with the laws 335 of this state other than this part. 336 (4) If the broker appointed under subsection (2) does not 337 obtain within a reasonable time an offer to purchase the 338 property for at least the determination of value, the court, 339 after hearing, may: 340 (a) Approve the highest outstanding offer, if any; 341 (b) Redetermine the value of the property and order that 342 the property continue to be offered for an additional time; or 343 (c) Order that the property be sold by sealed bids or at an 344 auction. 345 (5) If the court orders a sale by sealed bids or an 346 auction, the court shall set terms and conditions of the sale. 347 If the court orders an auction, the auction must be conducted 348 under part I of this chapter. 349 (6) If a purchaser is entitled to a share of the proceeds 350 of the sale, the purchaser is entitled to a credit against the 351 price in an amount equal to the purchaser’s share of the 352 proceeds. 353 64.211 Report of open-market sale.— 354 (1) Unless required to do so within a shorter time by part 355 I of this chapter, a broker appointed under s. 64.210(2) to 356 offer heirs property for open-market sale shall file a report 357 with the court not later than 7 days after receiving an offer to 358 purchase the property for at least the value determined under s. 359 64.206 or s. 64.210. 360 (2) The report required by subsection (1) must contain the 361 following information: 362 (a) A description of the property to be sold to each buyer. 363 (b) The name of each buyer. 364 (c) The proposed purchase price. 365 (d) The terms and conditions of the proposed sale, 366 including the terms of any owner financing. 367 (e) The amounts to be paid to lienholders. 368 (f) A statement of contractual or other arrangements or 369 conditions of the broker’s commission. 370 (g) Other material facts relevant to the sale. 371 64.212 Uniformity of application and construction.—In 372 applying and construing this uniform act, consideration must be 373 given to the need to promote uniformity of the law with respect 374 to its subject matter among states that enact it. 375 64.213 Relation to Electronic Signatures in Global and 376 National Commerce Act.—This part modifies, limits, and 377 supersedes the Electronic Signatures in Global and National 378 Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not modify, 379 limit, or supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c), 380 or authorize electronic delivery of any of the notices described 381 in s. 103(b) of that act, 15 U.S.C. s. 7003(b). 382 Section 3. This act shall take effect July 1, 2020.