We previously wrote here about the partition of land owned by heirs of the prior owner.
As we wrote, the Mississippi legislature recently passed a new law that sets forth specific procedures for co-owners (also called cotenants) of land to divide up the land (or the sales price of the land) when the property meets the definition of “heir property.”
Under the new law, “heir property” means real property held in tenancy in common and that meets all of the following requirements:
(A) There is no agreement in a record binding all the cotenants that governs the partition of the property;
(B) One or more of the cotenants acquired title from a relative, whether living or deceased; and
(C) Any of the following applies:
(i) 20% or more of the interests are held by cotenants who are relatives;
(ii) 20% or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
(iii) 20% or more of the cotenants are relatives.
Thus, land can be “heir property” even if all of the cotenants are not related.
If the land is “heir property,” then the new law must be followed.
Other partition law.
Prior to the adoption of the new law, Mississippi already had a set of laws governing the partition of land. These prior laws are not replaced by the new law (although if there is a conflict between the two, the new law controls).
Under prior law, partition was governed by Miss. Code Sections 11-21-1 through 11-21-45.
That law allows co-owners of property to file suit in Chancery Court asking for a partition in kind of the land. “Partition in kind” means actually dividing the land into separate parts and giving each co-owner a part.
Under these Code Sections, partition is not limited to “heir property.” As long as the property is owned by two or more persons, partition is available.
If the Chancery Court concludes that the land cannot be fairly divided between the co-owners, or if it is in the best interest of the co-owners, the court can order the land sold and the proceeds divided between the co-owners in proportion to their ownership interest.
Additional powers of the Chancery Court
Under these older statutes, the court is not limited to just partitioning the land or ordering a sale.
The court may also resolve any challenge as to any of the co-owners’ actual ownership of the land.
In addition, the court may “adjust the equities” between the co-owners.
For example, if one cotenant has been paying all the taxes on the land, the court can require the others to pay their share.
Similarly, if one co-owner has been collecting rents on the property, the Chancery Court can make him account to the others for their share.
If you have a real estate dispute or other need involving land, give us a call.
Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110