Florida Senate - 2020 CS for SB 580 By the Committee on Judiciary; and Senator Bracy 590-02040-20 2020580c1 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 construction; providing for service 13 and notice; creating s. 64.205, F.S.; providing for 14 appointment and qualifications of commissioners; 15 creating s. 64.206, F.S.; providing for the 16 determination of property value; creating s. 64.207, 17 F.S.; providing for buyout of cotenants; creating s. 18 64.208, F.S.; providing for alternatives to partition; 19 creating s. 64.209, F.S.; providing factors to be 20 considered in determining whether partition in kind 21 may be ordered; creating s. 64.210, F.S.; providing 22 for sale of property through open-market sale, sealed 23 bids, or auction; creating s. 64.211, F.S.; providing 24 requirements for reporting of an open-market sale of 25 property; creating s. 64.212, F.S.; providing for 26 uniformity of application and construction; creating 27 s. 64.213, F.S.; specifying the relation of the act to 28 the Electronic Signatures in Global and National 29 Commerce Act; creating s. 64.214, F.S.; authorizing 30 certain cotenants to agree to certain partitions of 31 real property; requiring such cotenants to jointly 32 notify the court of such agreement; providing an 33 effective date. 34 35 Be It Enacted by the Legislature of the State of Florida: 36 37 Section 1. Sections 64.011, 64.022, 64.031, 64.041, 64.051, 38 64.061, 64.071, 64.081, and 64.091, Florida Statutes, are 39 designated as part I of chapter 64, Florida Statutes, and 40 entitled “General Provisions.” 41 Section 2. Part II of chapter 64, Florida Statutes, 42 consisting of sections 64.201, 64.202, 64.203, 64.204, 64.205, 43 64.206, 64.207, 64.208, 64.209, 64.210, 64.211, 64.212, 64.213, 44 and 64.214, is created to read: 45 PART II 46 UNIFORM PARTITION OF HEIRS PROPERTY ACT 47 64.201 Short title.—This part may be cited as the “Uniform 48 Partition of Heirs Property Act”. 49 64.202 Definitions.—As used in this part, the term: 50 (1) “Ascendant” means an individual who precedes another 51 individual in lineage, in the direct line of ascent from the 52 other individual. 53 (2) “Collateral” means an individual who is related to 54 another individual under the law of intestate succession of this 55 state but who is not the other individual’s ascendant or 56 descendant. 57 (3) “Descendant” means an individual who follows another 58 individual in lineage, in the direct line of descent from the 59 other individual. 60 (4) “Determination of value” means a court order 61 determining the fair market value of heirs property under s. 62 64.206 or s. 64.210 or adopting the valuation of the property 63 agreed to by all cotenants. 64 (5) “Equitable accounting” means considering contributions 65 and adjustments of accounts between cotenants which are related 66 to the real property and are based upon such contributions and 67 adjustments, s. 64.081, and common law. 68 (6) “Heirs property” means real property held in tenancy in 69 common which satisfies all of the following requirements as of 70 the filing of a partition action: 71 (a) There is no agreement in a record binding all the 72 cotenants which governs the partition of the property; 73 (b) One or more of the cotenants acquired title from a 74 relative, whether living or deceased; and 75 (c) Any of the following applies: 76 1. Twenty percent or more of the interests are held by 77 cotenants who are relatives; 78 2. Twenty percent or more of the interests are held by an 79 individual who acquired title from a relative, whether living or 80 deceased; or 81 3. Twenty percent or more of the cotenants are relatives. 82 (7) “Partition by sale” means a court-ordered sale of the 83 entire heirs property, whether by open-market sale, sealed bids, 84 or auction conducted under s. 64.210. 85 (8) “Partition in kind” means the division of heirs 86 property into physically distinct and separately titled parcels. 87 (9) “Record” means information that is inscribed on a 88 tangible medium or that is stored in an electronic or other 89 medium and is retrievable in perceivable form. 90 (10) “Relative” means an ascendant, descendant, or 91 collateral or an individual otherwise related to another 92 individual by blood, marriage, adoption, or law of this state 93 other than this part. 94 64.203 Applicability; relation to other law.— 95 (1) This part applies to partition actions filed on or 96 after July 1, 2020. 97 (2) Provided that a partition action is otherwise available 98 under part I of this chapter, the court shall determine whether 99 the property is heirs property. If the court determines that the 100 property is heirs property, the property must be partitioned 101 under this part unless all of the cotenants otherwise agree in a 102 record. 103 (3) This part supplements part I of this chapter and, if an 104 action is governed by this part, replaces provisions of part I 105 of this chapter that are inconsistent with this part. 106 64.204 Service; notice by posting.— 107 (1) This part does not limit or affect the method by which 108 service of a complaint in a partition action may be made. 109 (2) If the plaintiff in a partition action seeks notice by 110 publication, the court shall order the clerk of the court to 111 issue a notice of action to the plaintiff in the form set forth 112 in s. 49.08 and the plaintiff must, not later than 10 days after 113 receipt, post the notice of action on the property that is the 114 subject of the action. 115 64.205 Commissioners.—If the court appoints commissioners 116 pursuant to s. 64.061, each commissioner, in addition to the 117 requirements and disqualifications applicable to commissioners 118 in part I of this chapter, must be disinterested and impartial 119 and not a party to or a participant in the action. 120 64.206 Determination of value.— 121 (1) Except as otherwise provided in subsections (2) and 122 (3), if the court determines that the property that is the 123 subject of a partition action is heirs property, the court shall 124 determine the fair market value of the property by ordering an 125 appraisal pursuant to subsection (4). 126 (2) If all cotenants have agreed to the value of the 127 property or to another method of valuation, the court shall 128 adopt that value or the value produced by the agreed method of 129 valuation. 130 (3) If the court determines that the evidentiary value of 131 an appraisal is outweighed by the cost of the appraisal, the 132 court, after an evidentiary hearing, shall determine the fair 133 market value of the property and send notice to the parties of 134 the value. 135 (4) If the court orders an appraisal, the court shall 136 appoint a disinterested real estate appraiser licensed in this 137 state to determine the fair market value of the property 138 assuming sole ownership of the fee simple estate. On completion 139 of the appraisal, the appraiser shall file a sworn or verified 140 appraisal with the court. 141 (5) If an appraisal is conducted pursuant to subsection 142 (4), not later than 10 days after the appraisal is filed, the 143 court shall send notice to each party with a known address, 144 stating: 145 (a) The appraised fair market value of the property. 146 (b) That the appraisal is available at the clerk’s office. 147 (c) That a party may file with the court an objection to 148 the appraisal not later than 30 days after the notice is sent, 149 stating the grounds for the objection. 150 (6) If an appraisal is filed with the court pursuant to 151 subsection (4), the court shall conduct a hearing to determine 152 the fair market value of the property not sooner than 31 days 153 after a copy of the notice of the appraisal is sent to each 154 party under subsection (5), whether or not an objection to the 155 appraisal is filed under paragraph (5)(c). In addition to the 156 court-ordered appraisal, the court may consider any other 157 evidence of value offered by a party. 158 (7) After a hearing under subsection (6), but before 159 considering the merits of the partition action, the court shall 160 determine the fair market value of the property and send notice 161 to the parties of the value. 162 163 In addition to a determination of value under this section, the 164 court shall determine the amount of the equitable accounting 165 upon the request of any cotenant and shall appropriately adjust 166 any price, purchase price, apportioned price, buyout, judgment, 167 or partition granted under this part based on the results of the 168 equitable accounting. 169 64.207 Cotenant buyout.— 170 (1) If any cotenant requested partition by sale, after the 171 determination of value under s. 64.206, the court shall send 172 notice to the parties that any cotenant except a cotenant that 173 requested partition by sale may buy all the interests of the 174 cotenants that requested partition by sale. 175 (2) Not later than 45 days after the notice is sent under 176 subsection (1), any cotenant, except a cotenant that requested 177 partition by sale, may give notice to the court that it elects 178 to buy all the interests of the cotenants that requested 179 partition by sale. 180 (3) The purchase price for each of the interests of a 181 cotenant that requested partition by sale is the value of the 182 entire parcel determined under s. 64.206 multiplied by the 183 cotenant’s fractional ownership of the entire parcel. 184 (4) After expiration of the period in subsection (2), the 185 following rules apply: 186 (a) If only one cotenant elects to buy all the interests of 187 the cotenants that requested partition by sale, the court shall 188 notify all the parties of that fact. 189 (b) If more than one cotenant elects to buy all the 190 interests of the cotenants that requested partition by sale, the 191 court shall allocate the right to buy those interests among the 192 electing cotenants based on each electing cotenant’s existing 193 fractional ownership of the entire parcel divided by the total 194 existing fractional ownership of all cotenants electing to buy 195 and send notice to all the parties of that fact and of the price 196 to be paid by each electing cotenant. 197 (c) If no cotenant elects to buy all the interests of the 198 cotenants that requested partition by sale, the court shall send 199 notice to all the parties of that fact and resolve the partition 200 action under s. 64.208(1) and (2). 201 (5) If the court sends notice to the parties under 202 paragraph (4)(a) or paragraph (4)(b), the court shall set a 203 date, not sooner than 60 days after the date the notice was 204 sent, by which electing cotenants must pay their apportioned 205 price into the court. After this date, the following rules 206 apply: 207 (a) If all electing cotenants timely pay their apportioned 208 price into the court, the court shall issue a judgment of 209 partition reallocating all the interests of the cotenants, 210 disburse the amounts held by the court to the persons entitled 211 to them, and direct the clerk of the court to record the 212 judgment in the official records of the county where the 213 property is located. 214 (b) If no electing cotenant timely pays its apportioned 215 price, the court shall resolve the partition action under s. 216 64.208(1) and (2) as if the interests of the cotenants that 217 requested partition by sale were not purchased. 218 (c) If one or more but not all of the electing cotenants 219 fail to pay their apportioned price on time, the court shall 220 give notice to the electing cotenants that paid their 221 apportioned price of the interest remaining and the price for 222 all that interest. 223 (6) Not later than 20 days after the court gives notice 224 pursuant to paragraph (5)(c), any cotenant that paid may elect 225 to purchase all of the remaining interest by paying the entire 226 price into the court. After the 20-day period, the following 227 rules apply: 228 (a) If only one cotenant pays the entire price for the 229 remaining interest, the court shall issue a judgment of 230 partition reallocating the remaining interest to that cotenant 231 and reallocating the interests of all of the cotenants. The 232 court shall also disburse the amounts held by the court to the 233 persons entitled to them and direct the clerk of the court to 234 record such judgment in the official records of the county where 235 the property is located. 236 (b) If no cotenant pays the entire price for the remaining 237 interest, the court shall resolve the partition action under s. 238 64.208(1) and (2) as if the interests of the cotenants that 239 requested partition by sale were not purchased. 240 (c) If more than one cotenant pays the entire price for the 241 remaining interest, the court shall reapportion the remaining 242 interest among those paying cotenants, based on each paying 243 cotenant’s original fractional ownership of the entire parcel 244 divided by the total original fractional ownership of all 245 cotenants that paid the entire price for the remaining interest. 246 The court shall issue promptly a judgment of partition 247 reallocating all of the cotenants’ interests, disburse the 248 amounts held by the court to the persons entitled to them, 249 promptly refund any excess payment held by the court, and direct 250 the clerk of the court to record the judgment in the official 251 records of the county where the property is located. 252 (7) Not later than 45 days after the court sends notice to 253 the parties pursuant to subsection (1), any cotenant entitled to 254 buy an interest under this section may request the court to 255 authorize the sale as part of the pending action of the 256 interests of cotenants named as defendants and served with the 257 complaint but that did not appear in the action. 258 (8) If the court receives a timely request under subsection 259 (7), the court, after hearing, may deny the request or authorize 260 the requested additional sale on such terms as the court 261 determines are fair and reasonable, provided the court ensures 262 the due process rights of the nonappearing cotenants, subject to 263 the following limitations: 264 (a) A sale authorized under this subsection may occur only 265 after the purchase prices for all interests subject to sale 266 under subsections (1) through (6) have been paid into court and 267 those interests have been reallocated among the cotenants as 268 provided in those subsections. 269 (b) The purchase price for the interest of a nonappearing 270 cotenant is based on the court’s determination of value under s. 271 64.206. 272 64.208 Partition alternatives.— 273 (1) If any cotenant requested partition in kind, or if all 274 the interests of all cotenants that requested partition by sale 275 are not purchased by other cotenants pursuant to s. 64.207, or, 276 if after conclusion of the buyout under s. 64.207, a cotenant 277 remains that has requested partition in kind, the court shall 278 enter a judgment of partition in kind unless the court is 279 satisfied that commissioners appointed pursuant to s. 64.061 280 have considered the factors listed in s. 64.209 and found that 281 partition in kind will result in prejudice to the cotenants as a 282 group. In considering whether to order partition in kind, the 283 court shall approve a request by two or more parties to have 284 their individual interests aggregated. Such judgment of 285 partition must include the legal description of the real 286 property before partition, the legal description of each new 287 parcel, and the name of each parcel’s owner and shall be 288 recorded by the clerk of the court. 289 (2) If the court does not order partition in kind under 290 subsection (1), the court shall order partition by sale pursuant 291 to s. 64.210 or, if no cotenant requested partition by sale, the 292 court shall dismiss the action. 293 (3) If the court orders partition in kind pursuant to 294 subsection (1), the court may require that one or more cotenants 295 pay one or more other cotenants amounts so that the payments, 296 taken together with the value of the in-kind distributions to 297 the cotenants, will make the partition in kind just and 298 proportionate in value to the fractional interests held. 299 (4) If the court orders partition in kind, the court shall 300 allocate to the cotenants that are unknown, unlocatable, or the 301 subject of a default judgment, if their interests were not 302 bought out pursuant to s. 64.207, a part of the property 303 representing the combined interests of these cotenants as 304 determined by the court and this part of the property shall 305 remain undivided. 306 64.209 Considerations for partition in kind.— 307 (1) In determining under s. 64.208(1) whether partition in 308 kind would result in prejudice to the cotenants as a group, the 309 commissioners shall consider the following: 310 (a) Whether the heirs property practicably can be divided 311 among the cotenants. 312 (b) Whether partition in kind would apportion the property 313 in such a way that the aggregate fair market value of the 314 parcels resulting from the division would be materially less 315 than the value of the property if it were sold as a whole, 316 taking into account the condition under which a court-ordered 317 sale likely would occur. 318 (c) Evidence of the collective duration of ownership or 319 possession of the property by a cotenant and one or more 320 predecessors in title or predecessors in possession to the 321 cotenant who are or were relatives of the cotenant or each 322 other. 323 (d) A cotenant’s sentimental attachment to the property, 324 including any attachment arising because the property has 325 ancestral or other unique or special value to the cotenant. 326 (e) The lawful use being made of the property by a cotenant 327 and the degree to which the cotenant would be harmed if the 328 cotenant could not continue the same use of the property. 329 (f) The degree to which the cotenants have contributed 330 their pro rata share of the property taxes, insurance, and other 331 expenses associated with maintaining ownership of the property 332 or have contributed to the physical improvement, maintenance, or 333 upkeep of the property. 334 (g) Any other relevant factor. 335 (2) The commissioners may not consider any one factor in 336 subsection (1) to be dispositive without weighing the totality 337 of all relevant factors and circumstances. 338 64.210 Open-market sale, sealed bids, or auction.— 339 (1) If the court orders a sale of heirs property, the sale 340 must be an open-market sale unless the court finds that a sale 341 by sealed bids or an auction would be more economically 342 advantageous and in the best interest of the cotenants as a 343 group. 344 (2) If the court orders an open-market sale and the 345 parties, not later than 10 days after the entry of the order, 346 agree on a real estate broker licensed in this state to offer 347 the property for sale, the court shall appoint the broker and 348 establish a reasonable commission. If the parties do not agree 349 on a broker, the court shall appoint a disinterested real estate 350 broker licensed in this state to offer the property for sale and 351 shall establish a reasonable commission. The broker shall offer 352 the property for sale in a commercially reasonable manner at a 353 price no lower than the determination of value and on the terms 354 and conditions established by the court. 355 (3) If the broker appointed under subsection (2) obtains 356 within a reasonable time an offer to purchase the property for 357 at least the determination of value: 358 (a) The broker shall comply with the reporting requirements 359 in s. 64.211; and 360 (b) The sale may be completed in accordance with the laws 361 of this state other than this part. 362 (4) If the broker appointed under subsection (2) does not 363 obtain within a reasonable time an offer to purchase the 364 property for at least the determination of value, the court, 365 after hearing, may: 366 (a) Approve the highest outstanding offer, if any; 367 (b) Redetermine the value of the property and order that 368 the property continue to be offered for an additional time; or 369 (c) Order that the property be sold by sealed bids or at an 370 auction. 371 (5) If the court orders a sale by sealed bids or an 372 auction, the court shall set terms and conditions of the sale. 373 If the court orders an auction, the auction must be conducted 374 under part I of this chapter. 375 (6) If a purchaser is entitled to a share of the proceeds 376 of the sale, the purchaser is entitled to a credit against the 377 price in an amount equal to the purchaser’s share of the 378 proceeds. 379 64.211 Report of open-market sale.— 380 (1) Unless required to do so within a shorter time by part 381 I of this chapter, a broker appointed under s. 64.210(2) to 382 offer heirs property for open-market sale shall file a report 383 with the court not later than 7 days after receiving an offer to 384 purchase the property for at least the value determined under s. 385 64.206 or s. 64.210. 386 (2) The report required by subsection (1) must contain the 387 following information: 388 (a) A description of the property to be sold to each buyer. 389 (b) The name of each buyer. 390 (c) The proposed purchase price. 391 (d) The terms and conditions of the proposed sale, 392 including the terms of any owner financing. 393 (e) The amounts to be paid to lienholders. 394 (f) A statement of contractual or other arrangements or 395 conditions of the broker’s commission. 396 (g) Other material facts relevant to the sale. 397 64.212 Uniformity of application and construction.—In 398 applying and construing this uniform act, consideration must be 399 given to the need to promote uniformity of the law with respect 400 to its subject matter among states that enact it. 401 64.213 Relation to Electronic Signatures in Global and 402 National Commerce Act.—This part modifies, limits, and 403 supersedes the Electronic Signatures in Global and National 404 Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not modify, 405 limit, or supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c), 406 or authorize electronic delivery of any of the notices described 407 in s. 103(b) of that act, 15 U.S.C. s. 7003(b). 408 64.214 Access for all residents.—Notwithstanding any 409 provision to the contrary in this part, cotenants owning real 410 property that is not heirs property may agree to partition such 411 real property under this part. All of the cotenants must jointly 412 notify the court of such agreement. 413 Section 3. This act shall take effect July 1, 2020.