Bill Summaries: S 363 UNIFORM PARTITION OF HEIRS PROPERTY ACT.

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  • Summary date: Mar 25 2021 - More information

    Identical to H 367, filed 3/23/21.

    Adds new Part 4, Uniform Partition of Heirs Property Act, to Article 2 of GS Chapter 46A, providing as follows. Defines heirs property as real property held in tenancy in common that satisfies all of the following as of the filing of a partition proceeding: (1) there is no agreement in a record binding all the cotenants which governs the partition of the property; (2) one or more of the cotenants acquired title from a relative, whether living or deceased; and (3) 20% or more of the interests are held by cotenants who are relatives, 20% or more of the interests are held by an individual who acquired title from a relative, or 20% or more of the cotenants are relatives. 

    Requires a court, in a proceeding to partition real property under Article 2of  GS Chapter 46A to determine whether the property is heirs property; if such a determination is made, then the property must be partitioned under this Part unless all of the cotenants agree otherwise in a record. Sets out the procedure for notice by posting when a petitioner in a partition proceeding seeks authorization for notice by publication and the court decides that the property may be heirs property. Requires any commissioners appointed to partition the property by the court to be disinterested and impartial and not a party to or a participant in the proceeding.

    Requires the court, if it determines that the property that is the subject of a partition proceeding is heirs property, to determine the fair market value of the property by ordering an appraisal. Requires the court, however, to adopt a valuation or use another method of valuation when it has been agreed to by all cotenants. Provides that if the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court must determine the fair market value of the property, after an evidentiary hearing, and send notice to the parties. Sets out the procedure to be followed when an appraisal is conducted.

    Requires the court, when any cotenant requested partition by sale, after the determination of value, to send notice that any cotenant except one requesting partition by sale, may buy all of the interests of the cotenants making the request. Allows any cotenant, except the one requesting partition by sale, to give notice to the court no later than 45 days after the notice is sent stating that they elect to buy all interest of the cotenant requesting partition by sale. Sets out the process for determining the purchase price. Sets out procedures that apply at the end of the 45 days, varying based on how many of the cotenants (including, none) elect to buy the interests of the cotenant requesting partition by sale, including setting deadlines by which the electing cotenants must pay their apportioned price. Allows a cotenant who is entitled to buy an interest to request, no later than 45 days after the court sends notice to the parties, that the court authorize the sale as part of the pending proceeding of the interests of cotenants named as respondents and served with the complaint but that did not appear in the proceeding; allows the court to deny the request or authorize the requested additional sale on fair and reasonable terms, subject to the stated limitations.

    Provides that when all the interests of all cotenants that requested partition by sale are not purchased by other cotenants, or if, after conclusion of the buyout, a cotenant remains that has requested partition in kind, the court must order partition in kind unless the court, after consideration of all seven listed factors, finds that partition in kind will result in substantial injury to the cotenants as a group. Requires that when the court does not order partition in kind, the court must order partition by sale or, if no cotenant requested partition by sale, the court is required to dismiss the proceeding. Sets out the processes to be followed when the court orders partition in kind.

    Requires that when 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. Sets out the procedures to be followed for an open-market sale, including the appointment of a real estate broker when one is not agreed upon; procedures to be followed depending on whether or not the broker receives an offer to purchase in a reasonable time; and requirements for the broker to report to the court. Sets out requirements for when the court orders a sale by sealed bids or an auction.

    Provides that in applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. Sets out how this new Part relates to the Electronic Signature in Global and National Commerce Act.

    Makes conforming changes to GS 46A-26.

    Applies to petitions for partition filed on or after January 1, 2022.


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