Reference is to the bill as introduced.
Amend the bill, as and if amended, by striking SECTION 1 in its entirety and inserting:
/ SECTION 1. Chapter 61, Title 15 of the 1976 Code is amended by adding:
Section 15-61-310. This article may be cited as the 'Uniform Partition of Heirs' Property Act'.
Section 15-61-320. As
used in this article:
(1) 'Ascendant' means
an individual who precedes another individual in lineage, in the
direct line of ascent from the other individual.
(2) 'Collateral' means
an individual who is related to another individual under the law
of intestate succession of this State, but who is not the other
individual's ascendant or descendant.
(3) 'Descendant' means
an individual who follows another individual in lineage, in the
direct line of descent from the other individual.
(4) 'Determination of
value' means a court order determining the fair market value of
heirs' property under Section 15-61-360 or Section 15-61-400 or
adopting the valuation of the property agreed to by all
cotenants.
(5) 'Heirs' property'
means real property held in tenancy in common that satisfies all
of the following requirements as of the filing of a partition
action:
(a)
there is no agreement in a record binding all of 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)
twenty percent or more of the interests are held by
cotenants who are relatives;
(ii)
twenty percent or more of the interests are held by an
individual who acquired title from a relative, whether living or
deceased; or
(iii)
twenty percent or more of the cotenants are relatives.
(6) 'Manifest
prejudice' means a result that is obviously unfair or shocking
to the conscience and is direct, obvious, and observable when
considering the factors under Section 15-61-390(A).
(7) 'Partition by
allotment' means a court ordered partition of the heirs'
property where ownership to all or a portion of the heirs'
property is granted to one or more cotenants proportionate in
value to their interests in the entire heirs' property parcel,
with adjustments being made for payment to compensate other
cotenants for the value of their respective interests in the
heirs' property.
(8) 'Partition by sale'
means a court ordered sale of the entire heirs' property,
whether by auction, sealed bids, or open market sale, conducted
under Section 15-61-400.
(9) 'Partition in kind'
means the division of heirs' property into physically distinct
and separately titled parcels.
(10) 'Record' means
information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in
perceivable form.
(11) 'Relative' means
an ascendant, descendant, or collateral, or an individual
otherwise related to another individual by blood, marriage,
adoption, or law of this State other than this article, and for
purposes of this article, who owned or owns an interest in the
heirs' property.
(12) 'Time computed'
means computation of time as prescribed by this section, which
shall be governed by Rule 6, South Carolina Rules of Civil
Procedure, so that when the period of time prescribed or allowed
is seven days or less, intermediate Saturdays, Sundays, and
holidays are excluded in the computation.
Section 15-61-330. (A)
In an action to partition real property
under Article 1, upon motion of a party or from statements
contained in the pleadings, the court shall determine, in a
preliminary hearing held after the filing of the action, whether
the property is heirs' property. If the court determines that
the property is heirs' property, the partition of the heirs'
property is governed by the provisions of this article, unless
all cotenants otherwise agree in a record.
(B) This article
supplements the provisions of Article 1 and if the provisions of
this article differ from the provisions of Article 1, the
provisions of this article control.
Section 15-61-340. (A)
This article does not limit or affect the
method by which service of pleading in a partition action may be
made.
(B) If the plaintiff in
a partition action seeks notice by publication and the court
determines, pursuant to Section 15-61-330, that the property may
be heirs' property, the plaintiff, not later than ten days after
the determination of the court, shall post and maintain while
the action is pending a conspicuous sign on the property that is
the subject of the action. The sign must state that the action
has commenced and identify the name and address of the court and
the common designation by which the property is known. The court
may require, through its order, the plaintiff to publish on the
sign the name of the plaintiff and the known defendants.
Section 15-61-350. Pursuant to Rule 71, South Carolina Rules of Civil Procedure, this article does not affect a court's power, in partition proceedings, to dispense with the issuing of a writ of partition when, in the judgment of the court, it would involve unnecessary expense to issue such a writ. A court may, in all partition proceedings, without recourse to such writ, determine by means of testimony taken before the proper officer and reported to the court whether a partition in kind or partition by allotment among the parties is practicable or expedient and, when such cannot be fairly and equally made, may order the sale of the property and a division of the proceeds according to the rights of the parties. If a court issues a writ of partition and appoints commissioners pursuant to Rule 71, South Carolina Rules of Civil Procedure, each commissioner, in addition to the requirements and disqualifications applicable to commissioners in Rule 71, must be disinterested and impartial and not a party to or a participant in the action.
Section 15-61-360. (A)
Except as otherwise provided in subsections (B) and (C), if a
court determines that property that is the subject of a
partition action is heirs' property, the court shall determine
the fair market value of the property by ordering an appraisal
pursuant to subsection (D).
(B) If all cotenants
have agreed to the value of the property or to another method of
valuation, the court shall adopt that value or the value
produced by the agreed method of valuation.
(C) If the court
determines that the evidentiary value of an appraisal is
outweighed by the cost of the appraisal, the court, after an
evidentiary hearing, shall establish by order the fair market
value of the property. The Clerk of Court shall send notice of
the order to all parties not in default. Within one week from
the date notice was sent, the party that filed the partition
action shall send a copy of the order establishing the fair
market value of the property to all other cotenants with a known
address.
(D) If a court orders
an appraisal, the court shall appoint a disinterested real
estate appraiser licensed in this State to determine the fair
market value of the property assuming sole ownership of the fee
simple estate. On appointment of the appraiser, the court shall
order the appraiser to file a sworn or verified appraisal with
the court upon its completion and send notice of its filing to
all parties not in default stating:
(1)
the appraised fair market value of the property;
(2)
that the appraisal is available at the clerk's office;
and
(3)
that a party may file with the court an objection to the
appraisal no later than thirty days after the notice is sent,
stating the grounds for the objection.
(E) The court, in its
discretion, shall determine allocation of payment from the
parties to cover the costs of the appraisal.
(F) If an appraisal is
filed pursuant to subsection (D), within one week from the date
the notice was sent, the party that filed the partition action
shall send notice to all other cotenants with a known address,
stating:
(1)
the appraised fair market value of the property;
(2)
that the appraisal is available at the clerk's office;
and
(3)
that a party may file with the court an objection to the
appraisal no later than thirty days after the notice is sent
stating the grounds for the objection.
(G) If an appraisal is
filed with the court pursuant to subsection (D), the court shall
conduct a hearing to determine the fair market value of the
property not sooner than sixty days after a copy of the notice
of the appraisal is sent to each party under subsections (D) and
(F), whether or not an objection to the appraisal is filed. In
addition to the court-ordered appraisal, the court may consider
any other evidence of value offered by a party.
(H) After a hearing
under subsection (G), but before considering the merits of the
partition action, the court, by order, shall determine the fair
market value of the property. The Clerk of Court shall send
notice of the order to all parties not in default and, within
one week from the date notice was sent, the party filing the
partition action shall send copies of the fair market value
order to all other cotenants with a known address.
Section 15-61-370. (A)
If any cotenant requests partition by sale,
after the determination of value pursuant to Section 15-61-360,
the party filing the partition action, after receipt of the
value information from the clerk's office, shall send notice to
the parties that any cotenant, except a cotenant that requested
partition by sale, may buy all of the interests of the cotenants
that requested partition by sale.
(B) A cotenant, except
a cotenant that requested partition by sale, who is interested
in purchasing the interests of the cotenants that requested
partition by sale, shall notify the court of that interest no
later than ten days prior to the date set for the partition
trial. A cotenant that did not request partition by sale must be
allowed to purchase the interests of any cotenant who requested
a partition by sale, as provided in this article, whether
default has been entered against the cotenant or not.
(C) The purchase price
for each of the interests of a cotenant that requested partition
by sale is the value of the entire parcel determined pursuant to
Section 15-61-360 multiplied by the cotenant's fractional
ownership of the entire parcel.
(D) After the
expiration of the period in subsection (B), the following
requirements apply:
(1)
If only one cotenant elects to buy all the interests of
the cotenants that requested partition by sale, the court shall
order the Clerk of Court to notify the party filing partition of
that fact. After receiving notice from the Clerk of Court, the
party filing the partition action shall notify all the parties
of that same fact.
(2)
If more than one cotenant elects to buy all the interests
of the cotenants that requested partition by sale, the court, by
order, shall allocate the right to buy those interests among the
electing cotenants based on each electing cotenant's existing
fractional ownership of the entire parcel divided by the total
existing fractional ownership of all cotenants electing to buy.
The Clerk of Court shall send notice of the order to all parties
not in default and, within one week from the date notice was
sent, the party filing the partition action shall send a copy of
the order showing the price to be paid by each electing cotenant
to all other cotenants with a known address.
(3)
If no cotenant elects to buy all the interests of the
cotenants that requested partition by sale, the court shall
notify the party filing the partition action to send notice to
all the parties of that fact and the court shall resolve the
partition action, by order, pursuant to Section 15-61-380(A) and
(B).
(E) If notices are sent
to the parties under subsection (D)(1) or (2), the court shall
set a date, not sooner than sixty days after the date the notice
was sent, by which electing cotenants must pay their apportioned
price into the court. After this date, the following
requirements apply:
(1)
If all electing cotenants timely pay their apportioned
price into court, the court shall issue an order reallocating
all the interests of the cotenants and disburse the amounts held
by the court to the persons entitled to them.
(2)
If no electing cotenant timely pays its apportioned price,
the court shall resolve the partition action pursuant to Section
15-61-380 (A) and (B), as if the interests of the cotenants that
requested partition by sale were not purchased.
(3)
If one or more but not all of the electing cotenants fail
to pay their apportioned price on time, the court, on motion,
shall order the party so moving to give notice to the electing
cotenants that paid their apportioned price of the interest
remaining and the price for all the interests.
(F) Not later than
twenty days after notice is sent pursuant to subsection (E)(3),
any cotenant who paid may elect to purchase all of the remaining
interest by paying the entire price into the court. After an
additional twenty-day period, the following regulations
apply:
(1)
If only one cotenant pays the entire price for the
remaining interests, the court shall issue an order reallocating
the remaining interests to that cotenant and disburse the
amounts held by it to the persons entitled to them.
(2)
If no cotenant pays the entire price for the remaining
interests, the court shall resolve the partition action pursuant
to Section 15-61-380(A) and (B), as if the interests of the
cotenants that requested partition by sale were not
purchased.
(3)
If more than one cotenant pays the entire price for the
remaining interests, the court shall reapportion the remaining
interests among those paying cotenants, based on each paying
cotenant's original fractional ownership of the entire parcel
divided by the total original fractional ownership of all
cotenants that paid the entire price for the remaining
interests. The court shall issue promptly an order reallocating
all of the cotenants' interests, disburse the amounts held by it
to the persons entitled to them, and promptly refund any excess
payment held by the court.
(G) Not later than
forty days after the party filing the partition action sends
notice to the parties pursuant to subsection (A), any cotenant
entitled to buy an interest under this section may request the
court to authorize the sale as part of the pending action of the
interests of cotenants named as defendants and served with the
complaint, but that did not appear in the action.
(H) If the court
receives a timely request under subsection (G), the court, after
a hearing, may deny the request or authorize the requested
additional sale on such terms as the court determines are fair
and reasonable, subject to the following limitations:
(1)
A sale authorized under this subsection may occur only
after the purchase prices for all interests subject to sale
under subsections (A) through (F) have been paid into court and
those interests have been reallocated among the cotenants as
provided in those subsections.
(2)
The purchase price for the interest of a nonappearing
cotenant is based on the court's determination of value pursuant
to Section 15-61-360.
Section 15-61-380. (A)
If all the interests of the cotenants that
requested partition by sale are not purchased by other cotenants
pursuant to Section 15-61-370 or if, after conclusion of the
buyout pursuant to Section 15-61-370 a cotenant remains that has
requested a partition in kind or a partition by allotment, the
court shall order a partition in kind or a partition by
allotment, unless the court, after consideration of the factors
listed in Section 15-61-390, finds that partition in kind or
partition by allotment may result in manifest prejudice to the
cotenants as a group. In considering whether to order partition
in kind or partition by allotment, the court shall approve a
request by two or more parties to have their individual
interests aggregated.
(B) If the court does
not order partition in kind or partition by allotment under
subsection (A), the court shall order partition by sale pursuant
to Section 15-61-400 or, if no cotenant requested partition by
sale, the court shall dismiss the action.
(C) If the court orders
partition in kind or partition by allotment pursuant to
subsection (A), the court may require that one or more cotenants
pay one or more of the other cotenants amounts so that the
payments, taken together with the value of the in-kind
distributions to the cotenants, will make the partition in kind
or the partition by allotment just and proportionate in value to
the fractional interests held.
Section 15-61-390. (A)
In determining pursuant to Section
15-61-380(A) whether partition in kind or partition by allotment
would result in manifest prejudice to the cotenants as a group,
the court shall consider the following:
(1)
whether the heirs' property practicably can be divided
among the cotenants;
(2)
whether partition in kind or partition by allotment would
apportion the property in such a way that the aggregate fair
market value of the parcels resulting from the division would be
materially less than the value of the property if it were sold
as a whole, taking into account the condition under which a
court-ordered sale likely would occur;
(3)
evidence of the collective duration of ownership or
possession of the property by a cotenant and one or more
predecessors in title or predecessors in possession to the
cotenant who are or were relatives of the cotenant or each
other;
(4)
a cotenant's sentimental attachment to the property,
including any attachment arising because the property has
ancestral or other unique or special value to the cotenant;
(5)
the lawful use being made of the property by a cotenant
and the degree to which the cotenant would be harmed if the
cotenant could not continue the same use of the property;
(6)
the degree to which the cotenants have contributed their
pro rata share of the property taxes, insurance, and other
expenses associated with maintaining ownership of the property
or have contributed to the physical improvement, maintenance, or
upkeep of the property; and
(7)
any other relevant factor.
(B) The court may not
consider any one factor in subsection (A) to be dispositive
without weighing the totality of all relevant factors and
circumstances.
Section 15-61-400. (A)
If the court orders a sale of heirs'
property, the sale must be an open-market sale unless the court
finds that a sale by sealed bids or an auction would be more
economically advantageous and in the best interest of the
cotenants as a group.
(B) If the court orders
an open-market sale and the parties, not later than thirty days
after the entry of the order, agree on a real estate broker
licensed in this State to offer the property for sale, the
court, upon consultation with the parties, shall appoint the
broker and establish a reasonable commission. If the parties do
not agree on a broker, the court shall appoint a disinterested
real estate broker licensed in this State to offer the property
for sale and shall establish a reasonable commission. The broker
shall offer the property for sale in a commercially reasonable
manner at a price no lower than the determination of value and
on the terms and conditions established by the court.
(C) If a broker
appointed under subsection (B) obtains within a reasonable time
an offer to purchase the property for at least the determination
of value:
(1)
the broker shall comply with the reporting requirements in
Section 15-61-410;
(2)
the sale may be completed in accordance with state law
other than this article; and
(3)
the commission of the real estate broker must be paid from
the proceeds of the sale.
(D) If the broker
appointed under subsection (B) does not obtain within a
reasonable time an offer to purchase the property for at least
the determination of value, the court, after a hearing, may:
(1)
approve the highest outstanding offer, if any;
(2)
redetermine the value of the property and order that the
property continue to be offered for an additional time; or
(3)
order that the property be sold by sealed bids or at an
auction.
(E) If the court orders
a sale by sealed bids or an auction, the court shall set terms
and conditions of the sale. If the court orders an auction, the
auction must be conducted pursuant to procedures governing
judicial sales and auctions.
(F) If a purchaser is
entitled to a share of the proceeds of the sale, the purchaser
is entitled to a credit against the price in an amount equal to
the purchaser's share of the proceeds.
Section 15-61-410. (A)
Unless required otherwise to do so within a
shorter time, a broker appointed under Section 15-61-400 to
offer heirs' property for open-market sale shall file a report
with the court not later than ten days after receiving an offer
to purchase the property for at least the value determined
pursuant to Section 15-61-360 or 15-61-400.
(B) The report required
by subsection (A) must contain the following information:
(1)
a description of the property to be sold to each
buyer;
(2)
the name of each buyer;
(3)
the proposed purchase price;
(4)
the terms and conditions of the proposed sale, including
the terms of any owner financing;
(5)
the amounts to be paid to lienholders;
(6)
a statement of contractual or other arrangements or
conditions of the broker's commission; and
(7)
other material facts relevant to the sale.
Section 15-61-420. This article modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b), except to the extent that South Carolina law, rules, and regulations so authorize." /
Renumber sections to conform.
Amend title to conform.