Florida Senate - 2020                                     SB 580
       
       
        
       By Senator Bracy
       
       
       
       
       
       11-00510A-20                                           2020580__
    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 for service and notice; creating s.
   13         64.205, F.S.; providing for appointment and
   14         qualifications of commissioners; creating s. 64.206,
   15         F.S.; providing for the determination of property
   16         value; creating s. 64.207, F.S.; providing for buyout
   17         of cotenants; creating s. 64.208, F.S.; providing for
   18         alternatives to partition; creating s. 64.209, F.S.;
   19         providing factors to be considered in determining
   20         whether partition in kind may be ordered; creating s.
   21         64.210, F.S.; providing for sale of property through
   22         open-market sale, sealed bids, or auction; creating s.
   23         64.211, F.S.; providing requirements for reporting of
   24         an open-market sale of property; creating s. 64.212,
   25         F.S.; providing for uniformity of application and
   26         construction; creating s. 64.213, F.S.; specifying the
   27         relation of the act to the Electronic Signatures in
   28         Global and National Commerce Act; providing an
   29         effective date.
   30          
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Sections 64.011, 64.022, 64.031, 64.041, 64.051,
   34  64.061, 64.071, 64.081, and 64.091, Florida Statutes, are
   35  designated as part I of chapter 64, Florida Statutes, and
   36  entitled “General Provisions.”
   37         Section 2. Part II of chapter 64, Florida Statutes,
   38  consisting of sections 64.201, 64.202, 64.203, 64.204, 64.205,
   39  64.206, 64.207, 64.208, 64.209, 64.210, 64.211, 64.212, and
   40  64.213, is created to read:
   41                               PART II                             
   42               UNIFORM PARTITION OF HEIRS PROPERTY ACT             
   43         64.201Short title.—This part may be cited as the “Uniform
   44  Partition of Heirs Property Act”.
   45         64.202Definitions.—As used in this part, the term:
   46         (1)“Ascendant” means an individual who precedes another
   47  individual in lineage, in the direct line of ascent from the
   48  other individual.
   49         (2)“Collateral” means an individual who is related to
   50  another individual under the law of intestate succession of this
   51  state but who is not the other individual’s ascendant or
   52  descendant.
   53         (3)“Descendant” means an individual who follows another
   54  individual in lineage, in the direct line of descent from the
   55  other individual.
   56         (4)“Determination of value” means a court order
   57  determining the fair market value of heirs property under s.
   58  64.206 or s. 64.210 or adopting the valuation of the property
   59  agreed to by all cotenants.
   60         (5)“Heirs property” means real property held in tenancy in
   61  common which satisfies all of the following requirements as of
   62  the filing of a partition action:
   63         (a)There is no agreement in a record binding all the
   64  cotenants which governs the partition of the property;
   65         (b)One or more of the cotenants acquired title from a
   66  relative, whether living or deceased; and
   67         (c)Any of the following applies:
   68         1.Twenty percent or more of the interests are held by
   69  cotenants who are relatives;
   70         2.Twenty percent or more of the interests are held by an
   71  individual who acquired title from a relative, whether living or
   72  deceased; or
   73         3.Twenty percent or more of the cotenants are relatives.
   74         (6)“Partition by sale” means a court-ordered sale of the
   75  entire heirs property, whether by open-market sale, sealed bids,
   76  or auction conducted under s. 64.210.
   77         (7)“Partition in kind” means the division of heirs
   78  property into physically distinct and separately titled parcels.
   79         (8)“Record” means information that is inscribed on a
   80  tangible medium or that is stored in an electronic or other
   81  medium and is retrievable in perceivable form.
   82         (9)“Relative” means an ascendant, descendant, or
   83  collateral or an individual otherwise related to another
   84  individual by blood, marriage, adoption, or law of this state
   85  other than this part.
   86         64.203Applicability; relation to other law.—
   87         (1)This part applies to partition actions filed on or
   88  after July 1, 2020.
   89         (2)In an action to partition real property under part I of
   90  this chapter, the court shall determine whether the property is
   91  heirs property. If the court determines that the property is
   92  heirs property, the property must be partitioned under this part
   93  unless all of the cotenants otherwise agree in a record.
   94         (3)This part supplements part I of this chapter and, if an
   95  action is governed by this part, replaces provisions of part I
   96  of this chapter that are inconsistent with this part.
   97         64.204Service; notice by posting.—
   98         (1)This part does not limit or affect the method by which
   99  service of a complaint in a partition action may be made.
  100         (2)If the plaintiff in a partition action seeks notice by
  101  publication and the court determines that the property may be
  102  heirs property, the plaintiff, not later than 10 days after the
  103  court’s determination, shall post, and maintain while the action
  104  is pending, a conspicuous sign on the property that is the
  105  subject of the action. The sign must state that the action has
  106  commenced and must identify the name and address of the court
  107  and the common designation by which the property is known. The
  108  court may require the plaintiff to publish on the sign the name
  109  of the plaintiff and the known defendants.
  110         64.205Commissioners.—If the court appoints commissioners
  111  pursuant to s. 64.061, each commissioner, in addition to the
  112  requirements and disqualifications applicable to commissioners
  113  in part I of this chapter, must be disinterested and impartial
  114  and not a party to or a participant in the action.
  115         64.206Determination of value.—
  116         (1)Except as otherwise provided in subsections (2) and
  117  (3), if the court determines that the property that is the
  118  subject of a partition action is heirs property, the court shall
  119  determine the fair market value of the property by ordering an
  120  appraisal pursuant to subsection (4).
  121         (2)If all cotenants have agreed to the value of the
  122  property or to another method of valuation, the court shall
  123  adopt that value or the value produced by the agreed method of
  124  valuation.
  125         (3)If the court determines that the evidentiary value of
  126  an appraisal is outweighed by the cost of the appraisal, the
  127  court, after an evidentiary hearing, shall determine the fair
  128  market value of the property and send notice to the parties of
  129  the value.
  130         (4)If the court orders an appraisal, the court shall
  131  appoint a disinterested real estate appraiser licensed in this
  132  state to determine the fair market value of the property
  133  assuming sole ownership of the fee simple estate. On completion
  134  of the appraisal, the appraiser shall file a sworn or verified
  135  appraisal with the court.
  136         (5)If an appraisal is conducted pursuant to subsection
  137  (4), not later than 10 days after the appraisal is filed, the
  138  court shall send notice to each party with a known address,
  139  stating:
  140         (a)The appraised fair market value of the property.
  141         (b)That the appraisal is available at the clerk’s office.
  142         (c)That a party may file with the court an objection to
  143  the appraisal not later than 30 days after the notice is sent,
  144  stating the grounds for the objection.
  145         (6)If an appraisal is filed with the court pursuant to
  146  subsection (4), the court shall conduct a hearing to determine
  147  the fair market value of the property not sooner than 31 days
  148  after a copy of the notice of the appraisal is sent to each
  149  party under subsection (5), whether or not an objection to the
  150  appraisal is filed under paragraph (5)(c). In addition to the
  151  court-ordered appraisal, the court may consider any other
  152  evidence of value offered by a party.
  153         (7)After a hearing under subsection (6), but before
  154  considering the merits of the partition action, the court shall
  155  determine the fair market value of the property and send notice
  156  to the parties of the value.
  157         64.207Cotenant buyout.—
  158         (1)If any cotenant requested partition by sale, after the
  159  determination of value under s. 64.206, the court shall send
  160  notice to the parties that any cotenant except a cotenant that
  161  requested partition by sale may buy all the interests of the
  162  cotenants that requested partition by sale.
  163         (2)Not later than 45 days after the notice is sent under
  164  subsection (1), any cotenant, except a cotenant that requested
  165  partition by sale, may give notice to the court that it elects
  166  to buy all the interests of the cotenants that requested
  167  partition by sale.
  168         (3)The purchase price for each of the interests of a
  169  cotenant that requested partition by sale is the value of the
  170  entire parcel determined under s. 64.206 multiplied by the
  171  cotenant’s fractional ownership of the entire parcel.
  172         (4)After expiration of the period in subsection (2), the
  173  following rules apply:
  174         (a)If only one cotenant elects to buy all the interests of
  175  the cotenants that requested partition by sale, the court shall
  176  notify all the parties of that fact.
  177         (b)If more than one cotenant elects to buy all the
  178  interests of the cotenants that requested partition by sale, the
  179  court shall allocate the right to buy those interests among the
  180  electing cotenants based on each electing cotenant’s existing
  181  fractional ownership of the entire parcel divided by the total
  182  existing fractional ownership of all cotenants electing to buy
  183  and send notice to all the parties of that fact and of the price
  184  to be paid by each electing cotenant.
  185         (c)If no cotenant elects to buy all the interests of the
  186  cotenants that requested partition by sale, the court shall send
  187  notice to all the parties of that fact and resolve the partition
  188  action under s. 64.208(1) and (2).
  189         (5)If the court sends notice to the parties under
  190  paragraph (4)(a) or paragraph (4)(b), the court shall set a
  191  date, not sooner than 60 days after the date the notice was
  192  sent, by which electing cotenants must pay their apportioned
  193  price into the court. After this date, the following rules
  194  apply:
  195         (a)If all electing cotenants timely pay their apportioned
  196  price into court, the court shall issue an order reallocating
  197  all the interests of the cotenants and disburse the amounts held
  198  by the court to the persons entitled to them.
  199         (b)If no electing cotenant timely pays its apportioned
  200  price, the court shall resolve the partition action under s.
  201  64.208(1) and (2) as if the interests of the cotenants that
  202  requested partition by sale were not purchased.
  203         (c)If one or more but not all of the electing cotenants
  204  fail to pay their apportioned price on time, the court shall
  205  give notice to the electing cotenants that paid their
  206  apportioned price of the interest remaining and the price for
  207  all that interest.
  208         (6)Not later than 20 days after the court gives notice
  209  pursuant to paragraph (5)(c), any cotenant that paid may elect
  210  to purchase all of the remaining interest by paying the entire
  211  price into the court. After the 20-day period, the following
  212  rules apply:
  213         (a)If only one cotenant pays the entire price for the
  214  remaining interest, the court shall issue an order reallocating
  215  the remaining interest to that cotenant. The court shall issue
  216  promptly an order reallocating the interests of all of the
  217  cotenants and disburse the amounts held by it to the persons
  218  entitled to them.
  219         (b)If no cotenant pays the entire price for the remaining
  220  interest, the court shall resolve the partition action under s.
  221  64.208(1) and (2) as if the interests of the cotenants that
  222  requested partition by sale were not purchased.
  223         (c)If more than one cotenant pays the entire price for the
  224  remaining interest, the court shall reapportion the remaining
  225  interest among those paying cotenants, based on each paying
  226  cotenant’s original fractional ownership of the entire parcel
  227  divided by the total original fractional ownership of all
  228  cotenants that paid the entire price for the remaining interest.
  229  The court shall issue promptly an order reallocating all of the
  230  cotenants’ interests, disburse the amounts held by it to the
  231  persons entitled to them, and promptly refund any excess payment
  232  held by the court.
  233         (7)Not later than 45 days after the court sends notice to
  234  the parties pursuant to subsection (1), any cotenant entitled to
  235  buy an interest under this section may request the court to
  236  authorize the sale as part of the pending action of the
  237  interests of cotenants named as defendants and served with the
  238  complaint but that did not appear in the action.
  239         (8)If the court receives a timely request under subsection
  240  (7), the court, after hearing, may deny the request or authorize
  241  the requested additional sale on such terms as the court
  242  determines are fair and reasonable, subject to the following
  243  limitations:
  244         (a)A sale authorized under this subsection may occur only
  245  after the purchase prices for all interests subject to sale
  246  under subsections (1) through (6) have been paid into court and
  247  those interests have been reallocated among the cotenants as
  248  provided in those subsections.
  249         (b)The purchase price for the interest of a nonappearing
  250  cotenant is based on the court’s determination of value under s.
  251  64.206.
  252         64.208Partition alternatives.—
  253         (1)If all the interests of all cotenants that requested
  254  partition by sale are not purchased by other cotenants pursuant
  255  to s. 64.207, or, if after conclusion of the buyout under s.
  256  64.207, a cotenant remains that has requested partition in kind,
  257  the court shall order partition in kind unless the court, after
  258  consideration of the factors listed in s. 64.209, finds that
  259  partition in kind will result in manifest prejudice to the
  260  cotenants as a group. In considering whether to order partition
  261  in kind, the court shall approve a request by two or more
  262  parties to have their individual interests aggregated.
  263         (2)If the court does not order partition in kind under
  264  subsection (1), the court shall order partition by sale pursuant
  265  to s. 64.210 or, if no cotenant requested partition by sale, the
  266  court shall dismiss the action.
  267         (3)If the court orders partition in kind pursuant to
  268  subsection (1), the court may require that one or more cotenants
  269  pay one or more other cotenants amounts so that the payments,
  270  taken together with the value of the in-kind distributions to
  271  the cotenants, will make the partition in kind just and
  272  proportionate in value to the fractional interests held.
  273         (4)If the court orders partition in kind, the court shall
  274  allocate to the cotenants that are unknown, unlocatable, or the
  275  subject of a default judgment, if their interests were not
  276  bought out pursuant to s. 64.207, a part of the property
  277  representing the combined interests of these cotenants as
  278  determined by the court and this part of the property shall
  279  remain undivided.
  280         64.209Considerations for partition in kind.—
  281         (1)In determining under s. 64.208(1) whether partition in
  282  kind would result in manifest prejudice to the cotenants as a
  283  group, the court shall consider the following:
  284         (a)Whether the heirs property practicably can be divided
  285  among the cotenants.
  286         (b)Whether partition in kind would apportion the property
  287  in such a way that the aggregate fair market value of the
  288  parcels resulting from the division would be materially less
  289  than the value of the property if it were sold as a whole,
  290  taking into account the condition under which a court-ordered
  291  sale likely would occur.
  292         (c)Evidence of the collective duration of ownership or
  293  possession of the property by a cotenant and one or more
  294  predecessors in title or predecessors in possession to the
  295  cotenant who are or were relatives of the cotenant or each
  296  other.
  297         (d)A cotenant’s sentimental attachment to the property,
  298  including any attachment arising because the property has
  299  ancestral or other unique or special value to the cotenant.
  300         (e)The lawful use being made of the property by a cotenant
  301  and the degree to which the cotenant would be harmed if the
  302  cotenant could not continue the same use of the property.
  303         (f)The degree to which the cotenants have contributed
  304  their pro rata share of the property taxes, insurance, and other
  305  expenses associated with maintaining ownership of the property
  306  or have contributed to the physical improvement, maintenance, or
  307  upkeep of the property.
  308         (g)Any other relevant factor.
  309         (2)The court may not consider any one factor in subsection
  310  (1) to be dispositive without weighing the totality of all
  311  relevant factors and circumstances.
  312         64.210Open-market sale, sealed bids, or auction.—
  313         (1)If the court orders a sale of heirs property, the sale
  314  must be an open-market sale unless the court finds that a sale
  315  by sealed bids or an auction would be more economically
  316  advantageous and in the best interest of the cotenants as a
  317  group.
  318         (2)If the court orders an open-market sale and the
  319  parties, not later than 10 days after the entry of the order,
  320  agree on a real estate broker licensed in this state to offer
  321  the property for sale, the court shall appoint the broker and
  322  establish a reasonable commission. If the parties do not agree
  323  on a broker, the court shall appoint a disinterested real estate
  324  broker licensed in this state to offer the property for sale and
  325  shall establish a reasonable commission. The broker shall offer
  326  the property for sale in a commercially reasonable manner at a
  327  price no lower than the determination of value and on the terms
  328  and conditions established by the court.
  329         (3)If the broker appointed under subsection (2) obtains
  330  within a reasonable time an offer to purchase the property for
  331  at least the determination of value:
  332         (a)The broker shall comply with the reporting requirements
  333  in s. 64.211; and
  334         (b)The sale may be completed in accordance with the laws
  335  of this state other than this part.
  336         (4)If the broker appointed under subsection (2) does not
  337  obtain within a reasonable time an offer to purchase the
  338  property for at least the determination of value, the court,
  339  after hearing, may:
  340         (a)Approve the highest outstanding offer, if any;
  341         (b)Redetermine the value of the property and order that
  342  the property continue to be offered for an additional time; or
  343         (c)Order that the property be sold by sealed bids or at an
  344  auction.
  345         (5)If the court orders a sale by sealed bids or an
  346  auction, the court shall set terms and conditions of the sale.
  347  If the court orders an auction, the auction must be conducted
  348  under part I of this chapter.
  349         (6)If a purchaser is entitled to a share of the proceeds
  350  of the sale, the purchaser is entitled to a credit against the
  351  price in an amount equal to the purchaser’s share of the
  352  proceeds.
  353         64.211Report of open-market sale.—
  354         (1)Unless required to do so within a shorter time by part
  355  I of this chapter, a broker appointed under s. 64.210(2) to
  356  offer heirs property for open-market sale shall file a report
  357  with the court not later than 7 days after receiving an offer to
  358  purchase the property for at least the value determined under s.
  359  64.206 or s. 64.210.
  360         (2)The report required by subsection (1) must contain the
  361  following information:
  362         (a)A description of the property to be sold to each buyer.
  363         (b)The name of each buyer.
  364         (c)The proposed purchase price.
  365         (d)The terms and conditions of the proposed sale,
  366  including the terms of any owner financing.
  367         (e)The amounts to be paid to lienholders.
  368         (f)A statement of contractual or other arrangements or
  369  conditions of the broker’s commission.
  370         (g)Other material facts relevant to the sale.
  371         64.212Uniformity of application and construction.—In
  372  applying and construing this uniform act, consideration must be
  373  given to the need to promote uniformity of the law with respect
  374  to its subject matter among states that enact it.
  375         64.213Relation to Electronic Signatures in Global and
  376  National Commerce Act.—This part modifies, limits, and
  377  supersedes the Electronic Signatures in Global and National
  378  Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not modify,
  379  limit, or supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c),
  380  or authorize electronic delivery of any of the notices described
  381  in s. 103(b) of that act, 15 U.S.C. s. 7003(b).
  382         Section 3. This act shall take effect July 1, 2020.