Florida Senate - 2020 CS for CS for SB 580 By the Committees on Community Affairs; and Judiciary; and Senator Bracy 578-02235-20 2020580c2 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, and the court determines that the property is heirs 111 property, then the court shall order the clerk of the court to 112 issue a notice of action to the plaintiff in the form set forth 113 in s. 49.08 and the plaintiff must, not later than 10 days after 114 receipt, post the notice of action on the property that is the 115 subject of the action. 116 64.205 Commissioners.—If the court appoints commissioners 117 pursuant to s. 64.061, each commissioner, in addition to the 118 requirements and disqualifications applicable to commissioners 119 in part I of this chapter, must be disinterested and impartial 120 and not a party to or a participant in the action. 121 64.206 Determination of value.— 122 (1) Except as otherwise provided in subsections (2) and 123 (3), if the court determines that the property that is the 124 subject of a partition action is heirs property, the court shall 125 determine the fair market value of the property by ordering an 126 appraisal pursuant to subsection (4). 127 (2) If all cotenants have agreed to the value of the 128 property or to another method of valuation, the court shall 129 adopt that value or the value produced by the agreed method of 130 valuation. 131 (3) If the court determines that the evidentiary value of 132 an appraisal is outweighed by the cost of the appraisal, the 133 court, after an evidentiary hearing, shall determine the fair 134 market value of the property and send notice to the parties of 135 the value. 136 (4) If the court orders an appraisal, the court shall 137 appoint a disinterested real estate appraiser licensed in this 138 state to determine the fair market value of the property 139 assuming sole ownership of the fee simple estate. On completion 140 of the appraisal, the appraiser shall file a sworn or verified 141 appraisal with the court. 142 (5) If an appraisal is conducted pursuant to subsection 143 (4), not later than 10 days after the appraisal is filed, the 144 court shall send notice to each party with a known address, 145 stating: 146 (a) The appraised fair market value of the property. 147 (b) That the appraisal is available at the clerk’s office. 148 (c) That a party may file with the court an objection to 149 the appraisal not later than 30 days after the notice is sent, 150 stating the grounds for the objection. 151 (6) If an appraisal is filed with the court pursuant to 152 subsection (4), the court shall conduct a hearing to determine 153 the fair market value of the property not sooner than 31 days 154 after a copy of the notice of the appraisal is sent to each 155 party under subsection (5), whether or not an objection to the 156 appraisal is filed under paragraph (5)(c). In addition to the 157 court-ordered appraisal, the court may consider any other 158 evidence of value offered by a party. 159 (7) After a hearing under subsection (6), but before 160 considering the merits of the partition action, the court shall 161 determine the fair market value of the property and send notice 162 to the parties of the value. 163 164 In addition to a determination of value under this section, the 165 court shall determine the amount of the equitable accounting 166 upon the request of any cotenant and shall appropriately adjust 167 any price, purchase price, apportioned price, buyout, judgment, 168 or partition granted under this part based on the results of the 169 equitable accounting. 170 64.207 Cotenant buyout.— 171 (1) If any cotenant requested partition by sale, after the 172 determination of value under s. 64.206, the court shall send 173 notice to the parties that any cotenant except a cotenant that 174 requested partition by sale may buy all the interests of the 175 cotenants that requested partition by sale. 176 (2) Not later than 45 days after the notice is sent under 177 subsection (1), any cotenant, except a cotenant that requested 178 partition by sale, may give notice to the court that it elects 179 to buy all the interests of the cotenants that requested 180 partition by sale. 181 (3) The purchase price for each of the interests of a 182 cotenant that requested partition by sale is the value of the 183 entire parcel determined under s. 64.206 multiplied by the 184 cotenant’s fractional ownership of the entire parcel. 185 (4) After expiration of the period in subsection (2), the 186 following rules apply: 187 (a) If only one cotenant elects to buy all the interests of 188 the cotenants that requested partition by sale, the court shall 189 notify all the parties of that fact. 190 (b) If more than one cotenant elects to buy all the 191 interests of the cotenants that requested partition by sale, the 192 court shall allocate the right to buy those interests among the 193 electing cotenants based on each electing cotenant’s existing 194 fractional ownership of the entire parcel divided by the total 195 existing fractional ownership of all cotenants electing to buy 196 and send notice to all the parties of that fact and of the price 197 to be paid by each electing cotenant. 198 (c) If no cotenant elects to buy all the interests of the 199 cotenants that requested partition by sale, the court shall send 200 notice to all the parties of that fact and resolve the partition 201 action under s. 64.208(1) and (2). 202 (5) If the court sends notice to the parties under 203 paragraph (4)(a) or paragraph (4)(b), the court shall set a 204 date, not sooner than 60 days after the date the notice was 205 sent, by which electing cotenants must pay their apportioned 206 price into the court. After this date, the following rules 207 apply: 208 (a) If all electing cotenants timely pay their apportioned 209 price into the court, the court shall issue a judgment of 210 partition reallocating all the interests of the cotenants, 211 disburse the amounts held by the court to the persons entitled 212 to them, and direct the clerk of the court to record the 213 judgment in the official records of the county where the 214 property is located. 215 (b) If no electing cotenant timely pays its apportioned 216 price, the court shall resolve the partition action under s. 217 64.208(1) and (2) as if the interests of the cotenants that 218 requested partition by sale were not purchased. 219 (c) If one or more but not all of the electing cotenants 220 fail to pay their apportioned price on time, the court shall 221 give notice to the electing cotenants that paid their 222 apportioned price of the interest remaining and the price for 223 all that interest. 224 (6) Not later than 20 days after the court gives notice 225 pursuant to paragraph (5)(c), any cotenant that paid may elect 226 to purchase all of the remaining interest by paying the entire 227 price into the court. After the 20-day period, the following 228 rules apply: 229 (a) If only one cotenant pays the entire price for the 230 remaining interest, the court shall issue a judgment of 231 partition reallocating the remaining interest to that cotenant 232 and reallocating the interests of all of the cotenants. The 233 court shall also disburse the amounts held by the court to the 234 persons entitled to them and direct the clerk of the court to 235 record such judgment in the official records of the county where 236 the property is located. 237 (b) If no cotenant pays the entire price for the remaining 238 interest, the court shall resolve the partition action under s. 239 64.208(1) and (2) as if the interests of the cotenants that 240 requested partition by sale were not purchased. 241 (c) If more than one cotenant pays the entire price for the 242 remaining interest, the court shall reapportion the remaining 243 interest among those paying cotenants, based on each paying 244 cotenant’s original fractional ownership of the entire parcel 245 divided by the total original fractional ownership of all 246 cotenants that paid the entire price for the remaining interest. 247 The court shall issue promptly a judgment of partition 248 reallocating all of the cotenants’ interests, disburse the 249 amounts held by the court to the persons entitled to them, 250 promptly refund any excess payment held by the court, and direct 251 the clerk of the court to record the judgment in the official 252 records of the county where the property is located. 253 (7) Not later than 45 days after the court sends notice to 254 the parties pursuant to subsection (1), any cotenant entitled to 255 buy an interest under this section may request the court to 256 authorize the sale as part of the pending action of the 257 interests of cotenants named as defendants and served with the 258 complaint but that did not appear in the action. 259 (8) If the court receives a timely request under subsection 260 (7), the court, after hearing, may deny the request or authorize 261 the requested additional sale on such terms as the court 262 determines are fair and reasonable, provided the court ensures 263 the due process rights of the nonappearing cotenants, subject to 264 the following limitations: 265 (a) A sale authorized under this subsection may occur only 266 after the purchase prices for all interests subject to sale 267 under subsections (1) through (6) have been paid into court and 268 those interests have been reallocated among the cotenants as 269 provided in those subsections. 270 (b) The purchase price for the interest of a nonappearing 271 cotenant is based on the court’s determination of value under s. 272 64.206. 273 64.208 Partition alternatives.— 274 (1) If any cotenant requested partition in kind, or if all 275 the interests of all cotenants that requested partition by sale 276 are not purchased by other cotenants pursuant to s. 64.207, or, 277 if after conclusion of the buyout under s. 64.207, a cotenant 278 remains that has requested partition in kind, the court shall 279 enter a judgment of partition in kind unless the court is 280 satisfied that commissioners appointed pursuant to s. 64.061 281 have considered the factors listed in s. 64.209 and found that 282 partition in kind will result in prejudice to the cotenants as a 283 group. In considering whether to order partition in kind, the 284 court shall approve a request by two or more parties to have 285 their individual interests aggregated. Such judgment of 286 partition must include the legal description of the real 287 property before partition, the legal description of each new 288 parcel, and the name of each parcel’s owner and shall be 289 recorded by the clerk of the court in the official records of 290 the county where the property is located. 291 (2) If the court does not order partition in kind under 292 subsection (1), the court shall order partition by sale pursuant 293 to s. 64.210 or, if no cotenant requested partition by sale, the 294 court shall dismiss the action. 295 (3) If the court orders partition in kind pursuant to 296 subsection (1), the court may require that one or more cotenants 297 pay one or more other cotenants amounts so that the payments, 298 taken together with the value of the in-kind distributions to 299 the cotenants, will make the partition in kind just and 300 proportionate in value to the fractional interests held. 301 (4) If the court orders partition in kind, the court shall 302 allocate to the cotenants that are unknown, unlocatable, or the 303 subject of a default judgment, if their interests were not 304 bought out pursuant to s. 64.207, a part of the property 305 representing the combined interests of these cotenants as 306 determined by the court and this part of the property shall 307 remain undivided. 308 64.209 Considerations for partition in kind.— 309 (1) In determining under s. 64.208(1) whether partition in 310 kind would result in prejudice to the cotenants as a group, the 311 commissioners shall consider the following: 312 (a) Whether the heirs property practicably can be divided 313 among the cotenants. 314 (b) Whether partition in kind would apportion the property 315 in such a way that the aggregate fair market value of the 316 parcels resulting from the division would be materially less 317 than the value of the property if it were sold as a whole, 318 taking into account the condition under which a court-ordered 319 sale likely would occur. 320 (c) Evidence of the collective duration of ownership or 321 possession of the property by a cotenant and one or more 322 predecessors in title or predecessors in possession to the 323 cotenant who are or were relatives of the cotenant or each 324 other. 325 (d) A cotenant’s sentimental attachment to the property, 326 including any attachment arising because the property has 327 ancestral or other unique or special value to the cotenant. 328 (e) The lawful use being made of the property by a cotenant 329 and the degree to which the cotenant would be harmed if the 330 cotenant could not continue the same use of the property. 331 (f) The degree to which the cotenants have contributed 332 their pro rata share of the property taxes, insurance, and other 333 expenses associated with maintaining ownership of the property 334 or have contributed to the physical improvement, maintenance, or 335 upkeep of the property. 336 (g) Any other relevant factor. 337 (2) The commissioners may not consider any one factor in 338 subsection (1) to be dispositive without weighing the totality 339 of all relevant factors and circumstances. 340 64.210 Open-market sale, sealed bids, or auction.— 341 (1) If the court orders a sale of heirs property, the sale 342 must be an open-market sale unless the court finds that a sale 343 by sealed bids or an auction would be more economically 344 advantageous and in the best interest of the cotenants as a 345 group. 346 (2) If the court orders an open-market sale and the 347 parties, not later than 10 days after the entry of the order, 348 agree on a real estate broker licensed in this state to offer 349 the property for sale, the court shall appoint the broker and 350 establish a reasonable commission. If the parties do not agree 351 on a broker, the court shall appoint a disinterested real estate 352 broker licensed in this state to offer the property for sale and 353 shall establish a reasonable commission. The broker shall offer 354 the property for sale in a commercially reasonable manner at a 355 price no lower than the determination of value and on the terms 356 and conditions established by the court. 357 (3) If the broker appointed under subsection (2) obtains 358 within a reasonable time an offer to purchase the property for 359 at least the determination of value: 360 (a) The broker shall comply with the reporting requirements 361 in s. 64.211; and 362 (b) The sale may be completed in accordance with the laws 363 of this state other than this part. 364 (4) If the broker appointed under subsection (2) does not 365 obtain within a reasonable time an offer to purchase the 366 property for at least the determination of value, the court, 367 after hearing, may: 368 (a) Approve the highest outstanding offer, if any; 369 (b) Redetermine the value of the property and order that 370 the property continue to be offered for an additional time; or 371 (c) Order that the property be sold by sealed bids or at an 372 auction. 373 (5) If the court orders a sale by sealed bids or an 374 auction, the court shall set terms and conditions of the sale. 375 If the court orders an auction, the auction must be conducted 376 under part I of this chapter. 377 (6) If a purchaser is entitled to a share of the proceeds 378 of the sale, the purchaser is entitled to a credit against the 379 price in an amount equal to the purchaser’s share of the 380 proceeds. 381 64.211 Report of open-market sale.— 382 (1) Unless required to do so within a shorter time by part 383 I of this chapter, a broker appointed under s. 64.210(2) to 384 offer heirs property for open-market sale shall file a report 385 with the court not later than 7 days after receiving an offer to 386 purchase the property for at least the value determined under s. 387 64.206 or s. 64.210. 388 (2) The report required by subsection (1) must contain the 389 following information: 390 (a) A description of the property to be sold to each buyer. 391 (b) The name of each buyer. 392 (c) The proposed purchase price. 393 (d) The terms and conditions of the proposed sale, 394 including the terms of any owner financing. 395 (e) The amounts to be paid to lienholders. 396 (f) A statement of contractual or other arrangements or 397 conditions of the broker’s commission. 398 (g) Other material facts relevant to the sale. 399 64.212 Uniformity of application and construction.—In 400 applying and construing this uniform act, consideration must be 401 given to the need to promote uniformity of the law with respect 402 to its subject matter among states that enact it. 403 64.213 Relation to Electronic Signatures in Global and 404 National Commerce Act.—This part modifies, limits, and 405 supersedes the Electronic Signatures in Global and National 406 Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not modify, 407 limit, or supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c), 408 or authorize electronic delivery of any of the notices described 409 in s. 103(b) of that act, 15 U.S.C. s. 7003(b). 410 64.214 Access for all residents.—Notwithstanding any 411 provision to the contrary in this part, cotenants owning real 412 property that is not heirs property may agree to partition such 413 real property under this part. All of the cotenants must jointly 414 notify the court of such agreement. 415 Section 3. This act shall take effect July 1, 2020.