Probate law is often intertwined with real-estate law.  In fact, many people learn of the need for probate only when they get ready to deal with a piece of family property and discover an unprobated estate in the chain of title (for more information, see our Section on Probate & Real Estate or, for a good example of how this can come up, see the recent case of Tatum v. Wells)

One of the real-estate-related issues that can surface in a probate proceeding is called adverse possession.  Adverse possession is a function of the law that allows a person to acquire title to another person’s land by maintaining possession of the land for a continuous period of 10 years or more.

Mere possession will not meet the standard set for receiving title by adverse possession. In order for a court to find adverse possession, the possessor must prove that the possession is 1) under claim of right; 2) actual or hostile; 3) open, notorious, and visible; 4) exclusive; 5) continuous and uninterrupted for 10 years; and 6) peaceful.[1] The person seeking the title to the land must also show by clear and convincing evidence that each element has been met.

Clear and convincing evidence is the highest standard for proving your case that the court has. It is defined as a showing of evidence that produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. It is evidence so clear, direct, weighty and convincing that the fact finder comes to a clear conviction, without hesitancy, of the truth of the precise facts of the case.[2]

Tomorrow, we will see how this plays out in a recent Mississippi case involving adverse possession.

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[1] Stallings v. Bailey, 558 So. 2d 858, 860 (Miss. 1990).

 

[2] Moran v. Fairley, 919 So. 2d 969, 975 (¶24) (Miss. Ct. App. 2005).

Are new changes coming for Mississippi real estate LLCs?  The June 2010 newsletter of the Real Estate Section of the Mississippi Bar had this to say about the use of LLCs to hold real estate:

Limited liability companies currently seem to be the preferred form of entities for real estate these days. But many Mississippi statutes that are relevant to real estate still address corporations only. Examples include Section 15-1-11 (statute of limitations to recover land due to defects in corporate formalities); Section 27-7-308 (exception for withholding five percent of proceeds when seller is a foreign corporation); and Section 89-1-21 (how a corporation conveys land). Isn’t it time that these statutes were amended to include limited liability companies and limited partnerships?

I couldn’t agree more.  Limited liability companies have exploded in popularity since they first gained traction in the early 90s.  But the law has lagged behind.  Sometimes these changes can be used to the client’s advantage (I won’t give away any secrets here).  But most of the time, we end up with a patchwork of interdependent code provisions that no longer match the realities of the real estate marketplace.

The Mississippi legislature has been taking a more proactive approach in evaluating our business laws. And while the majority of our estate and trust laws look like they were written by gradeschoolers in the 18th century, the study groups headed by Secretary of State Delbert Hosemann have gone a long way toward bringing our business laws into the new millennium.  For example, the new LLC registration requirements–while admittedly adding a little hassle–are more in line with good practice in the modern legal environment.  Perhaps the legislature will take a look at the sections identified by the bar to bring them up to speed as well.