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       2020 Legislature                            CS for CS for SB 580
       
       
       
       
       
       
                                                              2020580er
    1  
    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         64.201Short title.—This part may be cited as the “Uniform
   48  Partition of Heirs Property Act”.
   49         64.202Definitions.—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         64.203Applicability; 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         64.204Service; 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         64.205Commissioners.—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         64.206Determination 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         64.207Cotenant 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         64.208Partition 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         64.209Considerations 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         64.210Open-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         64.211Report 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         64.212Uniformity 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         64.213Relation 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         64.214Access 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.