Florida Senate - 2020 COMMITTEE AMENDMENT Bill No. SB 580 Ì520502eÎ520502 LEGISLATIVE ACTION Senate . House . . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Judiciary (Bracy) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. Sections 64.011, 64.022, 64.031, 64.041, 64.051, 6 64.061, 64.071, 64.081, and 64.091, Florida Statutes, are 7 designated as part I of chapter 64, Florida Statutes, and 8 entitled “General Provisions.” 9 Section 2. Part II of chapter 64, Florida Statutes, 10 consisting of sections 64.201, 64.202, 64.203, 64.204, 64.205, 11 64.206, 64.207, 64.208, 64.209, 64.210, 64.211, 64.212, 64.213, 12 and 64.214, is created to read: 13 PART II 14 UNIFORM PARTITION OF HEIRS PROPERTY ACT 15 64.201 Short title.—This part may be cited as the “Uniform 16 Partition of Heirs Property Act”. 17 64.202 Definitions.—As used in this part, the term: 18 (1) “Ascendant” means an individual who precedes another 19 individual in lineage, in the direct line of ascent from the 20 other individual. 21 (2) “Collateral” means an individual who is related to 22 another individual under the law of intestate succession of this 23 state but who is not the other individual’s ascendant or 24 descendant. 25 (3) “Descendant” means an individual who follows another 26 individual in lineage, in the direct line of descent from the 27 other individual. 28 (4) “Determination of value” means a court order 29 determining the fair market value of heirs property under s. 30 64.206 or s. 64.210 or adopting the valuation of the property 31 agreed to by all cotenants. 32 (5) “Equitable accounting” means considering contributions 33 and adjustments of accounts between cotenants which are related 34 to the real property and are based upon such contributions and 35 adjustments, s. 64.081, and common law. 36 (6) “Heirs property” means real property held in tenancy in 37 common which satisfies all of the following requirements as of 38 the filing of a partition action: 39 (a) There is no agreement in a record binding all the 40 cotenants which governs the partition of the property; 41 (b) One or more of the cotenants acquired title from a 42 relative, whether living or deceased; and 43 (c) Any of the following applies: 44 1. Twenty percent or more of the interests are held by 45 cotenants who are relatives; 46 2. Twenty percent or more of the interests are held by an 47 individual who acquired title from a relative, whether living or 48 deceased; or 49 3. Twenty percent or more of the cotenants are relatives. 50 (7) “Partition by sale” means a court-ordered sale of the 51 entire heirs property, whether by open-market sale, sealed bids, 52 or auction conducted under s. 64.210. 53 (8) “Partition in kind” means the division of heirs 54 property into physically distinct and separately titled parcels. 55 (9) “Record” means information that is inscribed on a 56 tangible medium or that is stored in an electronic or other 57 medium and is retrievable in perceivable form. 58 (10) “Relative” means an ascendant, descendant, or 59 collateral or an individual otherwise related to another 60 individual by blood, marriage, adoption, or law of this state 61 other than this part. 62 64.203 Applicability; relation to other law.— 63 (1) This part applies to partition actions filed on or 64 after July 1, 2020. 65 (2) Provided that a partition action is otherwise available 66 under part I of this chapter, the court shall determine whether 67 the property is heirs property. If the court determines that the 68 property is heirs property, the property must be partitioned 69 under this part unless all of the cotenants otherwise agree in a 70 record. 71 (3) This part supplements part I of this chapter and, if an 72 action is governed by this part, replaces provisions of part I 73 of this chapter that are inconsistent with this part. 74 64.204 Service; notice by posting.— 75 (1) This part does not limit or affect the method by which 76 service of a complaint in a partition action may be made. 77 (2) If the plaintiff in a partition action seeks notice by 78 publication, the court shall order the clerk of the court to 79 issue a notice of action to the plaintiff in the form set forth 80 in s. 49.08 and the plaintiff must, not later than 10 days after 81 receipt, post the notice of action on the property that is the 82 subject of the action. 83 64.205 Commissioners.—If the court appoints commissioners 84 pursuant to s. 64.061, each commissioner, in addition to the 85 requirements and disqualifications applicable to commissioners 86 in part I of this chapter, must be disinterested and impartial 87 and not a party to or a participant in the action. 88 64.206 Determination of value.— 89 (1) Except as otherwise provided in subsections (2) and 90 (3), if the court determines that the property that is the 91 subject of a partition action is heirs property, the court shall 92 determine the fair market value of the property by ordering an 93 appraisal pursuant to subsection (4). 94 (2) If all cotenants have agreed to the value of the 95 property or to another method of valuation, the court shall 96 adopt that value or the value produced by the agreed method of 97 valuation. 98 (3) If the court determines that the evidentiary value of 99 an appraisal is outweighed by the cost of the appraisal, the 100 court, after an evidentiary hearing, shall determine the fair 101 market value of the property and send notice to the parties of 102 the value. 103 (4) If the court orders an appraisal, the court shall 104 appoint a disinterested real estate appraiser licensed in this 105 state to determine the fair market value of the property 106 assuming sole ownership of the fee simple estate. On completion 107 of the appraisal, the appraiser shall file a sworn or verified 108 appraisal with the court. 109 (5) If an appraisal is conducted pursuant to subsection 110 (4), not later than 10 days after the appraisal is filed, the 111 court shall send notice to each party with a known address, 112 stating: 113 (a) The appraised fair market value of the property. 114 (b) That the appraisal is available at the clerk’s office. 115 (c) That a party may file with the court an objection to 116 the appraisal not later than 30 days after the notice is sent, 117 stating the grounds for the objection. 118 (6) If an appraisal is filed with the court pursuant to 119 subsection (4), the court shall conduct a hearing to determine 120 the fair market value of the property not sooner than 31 days 121 after a copy of the notice of the appraisal is sent to each 122 party under subsection (5), whether or not an objection to the 123 appraisal is filed under paragraph (5)(c). In addition to the 124 court-ordered appraisal, the court may consider any other 125 evidence of value offered by a party. 126 (7) After a hearing under subsection (6), but before 127 considering the merits of the partition action, the court shall 128 determine the fair market value of the property and send notice 129 to the parties of the value. 130 131 In addition to a determination of value under this section, the 132 court shall determine the amount of the equitable accounting 133 upon the request of any cotenant and shall appropriately adjust 134 any price, purchase price, apportioned price, buyout, judgment, 135 or partition granted under this part based on the results of the 136 equitable accounting. 137 64.207 Cotenant buyout.— 138 (1) If any cotenant requested partition by sale, after the 139 determination of value under s. 64.206, the court shall send 140 notice to the parties that any cotenant except a cotenant that 141 requested partition by sale may buy all the interests of the 142 cotenants that requested partition by sale. 143 (2) Not later than 45 days after the notice is sent under 144 subsection (1), any cotenant, except a cotenant that requested 145 partition by sale, may give notice to the court that it elects 146 to buy all the interests of the cotenants that requested 147 partition by sale. 148 (3) The purchase price for each of the interests of a 149 cotenant that requested partition by sale is the value of the 150 entire parcel determined under s. 64.206 multiplied by the 151 cotenant’s fractional ownership of the entire parcel. 152 (4) After expiration of the period in subsection (2), the 153 following rules apply: 154 (a) If only one cotenant elects to buy all the interests of 155 the cotenants that requested partition by sale, the court shall 156 notify all the parties of that fact. 157 (b) If more than one cotenant elects to buy all the 158 interests of the cotenants that requested partition by sale, the 159 court shall allocate the right to buy those interests among the 160 electing cotenants based on each electing cotenant’s existing 161 fractional ownership of the entire parcel divided by the total 162 existing fractional ownership of all cotenants electing to buy 163 and send notice to all the parties of that fact and of the price 164 to be paid by each electing cotenant. 165 (c) If no cotenant elects to buy all the interests of the 166 cotenants that requested partition by sale, the court shall send 167 notice to all the parties of that fact and resolve the partition 168 action under s. 64.208(1) and (2). 169 (5) If the court sends notice to the parties under 170 paragraph (4)(a) or paragraph (4)(b), the court shall set a 171 date, not sooner than 60 days after the date the notice was 172 sent, by which electing cotenants must pay their apportioned 173 price into the court. After this date, the following rules 174 apply: 175 (a) If all electing cotenants timely pay their apportioned 176 price into the court, the court shall issue a judgment of 177 partition reallocating all the interests of the cotenants, 178 disburse the amounts held by the court to the persons entitled 179 to them, and direct the clerk of the court to record the 180 judgment in the official records of the county where the 181 property is located. 182 (b) If no electing cotenant timely pays its apportioned 183 price, the court shall resolve the partition action under s. 184 64.208(1) and (2) as if the interests of the cotenants that 185 requested partition by sale were not purchased. 186 (c) If one or more but not all of the electing cotenants 187 fail to pay their apportioned price on time, the court shall 188 give notice to the electing cotenants that paid their 189 apportioned price of the interest remaining and the price for 190 all that interest. 191 (6) Not later than 20 days after the court gives notice 192 pursuant to paragraph (5)(c), any cotenant that paid may elect 193 to purchase all of the remaining interest by paying the entire 194 price into the court. After the 20-day period, the following 195 rules apply: 196 (a) If only one cotenant pays the entire price for the 197 remaining interest, the court shall issue a judgment of 198 partition reallocating the remaining interest to that cotenant 199 and reallocating the interests of all of the cotenants. The 200 court shall also disburse the amounts held by the court to the 201 persons entitled to them and direct the clerk of the court to 202 record such judgment in the official records of the county where 203 the property is located. 204 (b) If no cotenant pays the entire price for the remaining 205 interest, the court shall resolve the partition action under s. 206 64.208(1) and (2) as if the interests of the cotenants that 207 requested partition by sale were not purchased. 208 (c) If more than one cotenant pays the entire price for the 209 remaining interest, the court shall reapportion the remaining 210 interest among those paying cotenants, based on each paying 211 cotenant’s original fractional ownership of the entire parcel 212 divided by the total original fractional ownership of all 213 cotenants that paid the entire price for the remaining interest. 214 The court shall issue promptly a judgment of partition 215 reallocating all of the cotenants’ interests, disburse the 216 amounts held by the court to the persons entitled to them, 217 promptly refund any excess payment held by the court, and direct 218 the clerk of the court to record the judgment in the official 219 records of the county where the property is located. 220 (7) Not later than 45 days after the court sends notice to 221 the parties pursuant to subsection (1), any cotenant entitled to 222 buy an interest under this section may request the court to 223 authorize the sale as part of the pending action of the 224 interests of cotenants named as defendants and served with the 225 complaint but that did not appear in the action. 226 (8) If the court receives a timely request under subsection 227 (7), the court, after hearing, may deny the request or authorize 228 the requested additional sale on such terms as the court 229 determines are fair and reasonable, provided the court ensures 230 the due process rights of the nonappearing cotenants, subject to 231 the following limitations: 232 (a) A sale authorized under this subsection may occur only 233 after the purchase prices for all interests subject to sale 234 under subsections (1) through (6) have been paid into court and 235 those interests have been reallocated among the cotenants as 236 provided in those subsections. 237 (b) The purchase price for the interest of a nonappearing 238 cotenant is based on the court’s determination of value under s. 239 64.206. 240 64.208 Partition alternatives.— 241 (1) If any cotenant requested partition in kind, or if all 242 the interests of all cotenants that requested partition by sale 243 are not purchased by other cotenants pursuant to s. 64.207, or, 244 if after conclusion of the buyout under s. 64.207, a cotenant 245 remains that has requested partition in kind, the court shall 246 enter a judgment of partition in kind unless the court is 247 satisfied that commissioners appointed pursuant to s. 64.061 248 have considered the factors listed in s. 64.209 and found that 249 partition in kind will result in prejudice to the cotenants as a 250 group. In considering whether to order partition in kind, the 251 court shall approve a request by two or more parties to have 252 their individual interests aggregated. Such judgment of 253 partition must include the legal description of the real 254 property before partition, the legal description of each new 255 parcel, and the name of each parcel’s owner and shall be 256 recorded by the clerk of the court. 257 (2) If the court does not order partition in kind under 258 subsection (1), the court shall order partition by sale pursuant 259 to s. 64.210 or, if no cotenant requested partition by sale, the 260 court shall dismiss the action. 261 (3) If the court orders partition in kind pursuant to 262 subsection (1), the court may require that one or more cotenants 263 pay one or more other cotenants amounts so that the payments, 264 taken together with the value of the in-kind distributions to 265 the cotenants, will make the partition in kind just and 266 proportionate in value to the fractional interests held. 267 (4) If the court orders partition in kind, the court shall 268 allocate to the cotenants that are unknown, unlocatable, or the 269 subject of a default judgment, if their interests were not 270 bought out pursuant to s. 64.207, a part of the property 271 representing the combined interests of these cotenants as 272 determined by the court and this part of the property shall 273 remain undivided. 274 64.209 Considerations for partition in kind.— 275 (1) In determining under s. 64.208(1) whether partition in 276 kind would result in prejudice to the cotenants as a group, the 277 commissioners shall consider the following: 278 (a) Whether the heirs property practicably can be divided 279 among the cotenants. 280 (b) Whether partition in kind would apportion the property 281 in such a way that the aggregate fair market value of the 282 parcels resulting from the division would be materially less 283 than the value of the property if it were sold as a whole, 284 taking into account the condition under which a court-ordered 285 sale likely would occur. 286 (c) Evidence of the collective duration of ownership or 287 possession of the property by a cotenant and one or more 288 predecessors in title or predecessors in possession to the 289 cotenant who are or were relatives of the cotenant or each 290 other. 291 (d) A cotenant’s sentimental attachment to the property, 292 including any attachment arising because the property has 293 ancestral or other unique or special value to the cotenant. 294 (e) The lawful use being made of the property by a cotenant 295 and the degree to which the cotenant would be harmed if the 296 cotenant could not continue the same use of the property. 297 (f) The degree to which the cotenants have contributed 298 their pro rata share of the property taxes, insurance, and other 299 expenses associated with maintaining ownership of the property 300 or have contributed to the physical improvement, maintenance, or 301 upkeep of the property. 302 (g) Any other relevant factor. 303 (2) The commissioners may not consider any one factor in 304 subsection (1) to be dispositive without weighing the totality 305 of all relevant factors and circumstances. 306 64.210 Open-market sale, sealed bids, or auction.— 307 (1) If the court orders a sale of heirs property, the sale 308 must be an open-market sale unless the court finds that a sale 309 by sealed bids or an auction would be more economically 310 advantageous and in the best interest of the cotenants as a 311 group. 312 (2) If the court orders an open-market sale and the 313 parties, not later than 10 days after the entry of the order, 314 agree on a real estate broker licensed in this state to offer 315 the property for sale, the court shall appoint the broker and 316 establish a reasonable commission. If the parties do not agree 317 on a broker, the court shall appoint a disinterested real estate 318 broker licensed in this state to offer the property for sale and 319 shall establish a reasonable commission. The broker shall offer 320 the property for sale in a commercially reasonable manner at a 321 price no lower than the determination of value and on the terms 322 and conditions established by the court. 323 (3) If the broker appointed under subsection (2) obtains 324 within a reasonable time an offer to purchase the property for 325 at least the determination of value: 326 (a) The broker shall comply with the reporting requirements 327 in s. 64.211; and 328 (b) The sale may be completed in accordance with the laws 329 of this state other than this part. 330 (4) If the broker appointed under subsection (2) does not 331 obtain within a reasonable time an offer to purchase the 332 property for at least the determination of value, the court, 333 after hearing, may: 334 (a) Approve the highest outstanding offer, if any; 335 (b) Redetermine the value of the property and order that 336 the property continue to be offered for an additional time; or 337 (c) Order that the property be sold by sealed bids or at an 338 auction. 339 (5) If the court orders a sale by sealed bids or an 340 auction, the court shall set terms and conditions of the sale. 341 If the court orders an auction, the auction must be conducted 342 under part I of this chapter. 343 (6) If a purchaser is entitled to a share of the proceeds 344 of the sale, the purchaser is entitled to a credit against the 345 price in an amount equal to the purchaser’s share of the 346 proceeds. 347 64.211 Report of open-market sale.— 348 (1) Unless required to do so within a shorter time by part 349 I of this chapter, a broker appointed under s. 64.210(2) to 350 offer heirs property for open-market sale shall file a report 351 with the court not later than 7 days after receiving an offer to 352 purchase the property for at least the value determined under s. 353 64.206 or s. 64.210. 354 (2) The report required by subsection (1) must contain the 355 following information: 356 (a) A description of the property to be sold to each buyer. 357 (b) The name of each buyer. 358 (c) The proposed purchase price. 359 (d) The terms and conditions of the proposed sale, 360 including the terms of any owner financing. 361 (e) The amounts to be paid to lienholders. 362 (f) A statement of contractual or other arrangements or 363 conditions of the broker’s commission. 364 (g) Other material facts relevant to the sale. 365 64.212 Uniformity of application and construction.—In 366 applying and construing this uniform act, consideration must be 367 given to the need to promote uniformity of the law with respect 368 to its subject matter among states that enact it. 369 64.213 Relation to Electronic Signatures in Global and 370 National Commerce Act.—This part modifies, limits, and 371 supersedes the Electronic Signatures in Global and National 372 Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not modify, 373 limit, or supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c), 374 or authorize electronic delivery of any of the notices described 375 in s. 103(b) of that act, 15 U.S.C. s. 7003(b). 376 64.214 Access for all residents.—Notwithstanding any 377 provision to the contrary in this part, cotenants owning real 378 property that is not heirs property may agree to partition such 379 real property under this part. All of the cotenants must jointly 380 notify the court of such agreement. 381 Section 3. This act shall take effect July 1, 2020. 382 383 ================= T I T L E A M E N D M E N T ================ 384 And the title is amended as follows: 385 Delete everything before the enacting clause 386 and insert: 387 A bill to be entitled 388 An act relating to the Uniform Partition of Heirs 389 Property Act; designating part I of ch. 64, F.S., 390 entitled “General Provisions”; creating part II of ch. 391 64, F.S., entitled “Uniform Partition of Heirs 392 Property Act”; creating s. 64.201, F.S.; providing a 393 short title; creating s. 64.202, F.S.; defining terms; 394 creating s. 64.203, F.S.; providing applicability; 395 providing requirements relating to the court 396 determination of heirs property; specifying the 397 relation of the act to other law; creating s. 64.204, 398 F.S.; providing construction; providing for service 399 and notice; creating s. 64.205, F.S.; providing for 400 appointment and qualifications of commissioners; 401 creating s. 64.206, F.S.; providing for the 402 determination of property value; creating s. 64.207, 403 F.S.; providing for buyout of cotenants; creating s. 404 64.208, F.S.; providing for alternatives to partition; 405 creating s. 64.209, F.S.; providing factors to be 406 considered in determining whether partition in kind 407 may be ordered; creating s. 64.210, F.S.; providing 408 for sale of property through open-market sale, sealed 409 bids, or auction; creating s. 64.211, F.S.; providing 410 requirements for reporting of an open-market sale of 411 property; creating s. 64.212, F.S.; providing for 412 uniformity of application and construction; creating 413 s. 64.213, F.S.; specifying the relation of the act to 414 the Electronic Signatures in Global and National 415 Commerce Act; creating s. 64.214, F.S.; authorizing 416 certain cotenants to agree to certain partitions of 417 real property; requiring such cotenants to jointly 418 notify the court of such agreement; providing an 419 effective date.