Tag Archives: property

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Under Mississippi’s Uniform Controlled Substances Law, all aircraft, vehicles and vessels that are used, or intended to be used, to transport illegally possessed or illegally manufactured controlled substances that are in violation of Article 5 of Chapter 29 (drugs and controlled substances).  Miss. Code Ann. §§ 41-29-153, 41-29-176 thru 179.

Prior to seizure, the owner is entitled to notice that his property will be seized.  The notice should specifically describe what property is to be seized.  Any property with a value less than ten thousand dollars ($10,000) requires that the seizing agency:

  1. Provide notice of the intent to forfeit the seized property. This notice must be served on the owner in accordance with the Mississippi Rules of Civil Procedure..
  2. If notice cannot be served because of refusal, failure to claim, insufficient address or for any other reason, the agency must publish the notice in a newspaper of general circulation in the county that the property was seized. Notice must last for three consecutive weeks, at least once per week.
  3. The notice must contain the following details:
    1. A description of the seized property;
    2. The approximate value of the property;
    3. The date of the seizure and the place of the seizure;
    4. The connection between the property and the violation;
    5. Instructions providing how one should file for judicial review (protesting the seizure); and,
    6. A statement that the property will be forfeited if judicial review is not timely filed.
  4. The agency conducting the seizure has thirty days from the date of seizure to commence this proceeding or the property is to be returned to the following:
    1. The owner of the property, if address is known;
    2. Any secured party with a registered lien or filed financing statement;
    3. Any bona fide lienholder or secured party;
    4. Any holder of a mortgage, deed of trust, lien or encumbrance if the property is real estate; and,
    5. Any person in possession of the seized property that is subject to the petition at the time that it was seized.

Once the court of jurisdiction (usually circuit court) has determined that the agency’s notice requirements have been complied with, a copy of the petition is to be served upon all interested parties.

If a determination is made that an individual other than the person in possession at time of seizure is the owner or holds any lien or interest, the seizing agency must identify that individual in the petition of forfeiture and serve that person in accordance with the Mississippi Rues of Civil Procedure. If the owner of the property cannot be located and served with the forfeiture petition or if no person was in possession of the forfeited property, the seizing agency must file an affidavit stating such circumstances with the court.

If any individual asserting a right or interest in the property shows that their interest is greater than or equal to the present value of the property, the court must order the property released to that party. If the interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall forfeit the property to the seizing agency.

The owner of seized property has thirty days after service of process in which to file an answer. If the property owner fails to file an answer, the court will hear evidence that the property is subject to forfeiture and forfeit the property to the seizing agency.

If an answer is filed, a forfeiture hearing will be set within thirty (30) days of filing the answer.  The court may postpone the hearing to a date beyond the time any criminal action is pending against the property owner. The burden is on the seizing agency to prove that the property is subject to forfeiture. The standard of proof is by a preponderance of the evidence.  If the property owner does not file an answer, the petition for forfeiture will be allowed into evidence and will be prima facie evidence that the property is subject to forfeiture.

Any person or entity claiming an interest in the property may prove such right or interest to be bona fide and created without knowledge or consent that the property was to be used in a manner to cause the property to be subject to the forfeiture.  If an owner of property can prove by a preponderance of the evidence that she had no knowledge of, or did not consent to, the use of such property in a manner that made it subject to forfeiture, forfeiture will be denied.   However, Mississippi law places the burden of proof on the seizing agency to show that the owner had knowledge that the property was being used for illegal purpose.

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Often when probating an estate, the disposition of the decedent’s property to a third party, non-heir will be necessary.  The executor may accomplish such a sale through the execution of an executor’s deed.  An executor’s deed is a deed used by an executor to convey or transfer property out of the estate of a person who died with a will.  An executor’s deed should contain the following information:

  • Executor’s name;
  • Language that the executor is conveying the property in his capacity as executor;
  • The name of the decedent (the person who died and left the will);
  • Language that the deed is being executed pursuant to the terms of the will;
  • Language that the will has been offered for probate;
  • The legal description of the property being conveyed; and
  • The signature of the executor.

The heirs of the decedent should also execute a Quitclaim Deed deed in conjunction with the executor.  This will prevent future challenges to the conveyance by the heirs. An executor’s deed should be recorded in the real estate records of the county in which the property being conveyed is located.

Mississippi Code Ann § 91-7-187. Sale of land in preference to personalty provides that the executor must petition the court for the authority to sell decedents property holding that:

When the estate of any deceased person consists of real and personal property and it shall be necessary to sell a portion thereof, the chancery court, on petition of the executor, administrator, legatees or distributees, being satisfied that it would be to the interest of the distributees or legatees, may decree a sale of the real estate in preference to the personal estate.

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 When a person dies with a will, that person has died “testate” which means that a “probate estate” must be opened in the Chancery Court.  In Mississippi, chancery courts have jurisdiction over estate matters.  The probate attorney will initiate the probate process by filing a “Petition to Open Estate”.

If the court finds the Petition meets all requirements imposed by law, letters testamentary are granted to the person who will administer the estate or, the  “executor”.  The letters testamentary are documents evidencing the executor’s power to act on behalf of the estate.   At this time, the executor must execute a statutorily prescribed oath known as the “Oath of Executrix”.

The Executor must then place a “Notice to Creditors” in a publication circulated in the decedent’s county of residence.  Notice to creditors must be published once a week for three consecutive weeks.  If no creditors register a claim against the estate within 90 days, the claim is barred.

Once it is determined that no claims were registered, the estate attorney, will then petition the court to distribute assets and close the estate.  Upon completion of all probate matters, the attorney will then file a “Statement of Compliance” with court.

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Tax sales take place when there are overdue taxes on real estate. Mississippi tax sales are generally held the last Monday in August with notice by publication.  At the tax sale, the the Chancery clerk utilizes an overbid system wherein taxes are auctioned by competitive bid. Successful bidders will pay the taxes due for the real estate.  Upon payment of those taxes, a lien is placed on the property for the buyer.  A tax lien certificate is issued to the buyer as proof of his claim against the property.

If the the original owner does not redeem the property after two years, the buyer will be given a sales deed making him the record title owner.  To redeem the property, the original owner must pay the amount he owed plus any taxes since paid on the property and interest and fees.

At the end of the redemption period, the county Chancery Clerk must send notice to the original owner that the final sale of the property will take place. By statute, the sheriff is required to serve notice on the original property owner.  Notice must also be sent by registered or certified mail.  Failure to give proper notice could be grounds for invalidating the tax sale.

[1] Miss. Code Ann. § 27-43-3 (Supp. 2009).