Florida Senate - 2020                        COMMITTEE AMENDMENT
       Bill No. SB 580
       
       
       
       
       
       
                                Ì520502eÎ520502                         
       
                              LEGISLATIVE ACTION                        
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       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         64.201Short title.—This part may be cited as the “Uniform
   16  Partition of Heirs Property Act”.
   17         64.202Definitions.—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         64.203Applicability; 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         64.204Service; 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         64.205Commissioners.—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         64.206Determination 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         64.207Cotenant 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         64.208Partition 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         64.209Considerations 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         64.210Open-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         64.211Report 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         64.212Uniformity 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         64.213Relation 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         64.214Access 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.