HB2802 HFA Fast and Shott #1 2-25

Akers 3254

Delegates Fast and Shott move to amend the bill on page three, section three, after the section heading, by striking the remainder of the section in its entirety and inserting in lieu thereof the following:

“(a) This article applies to partition actions filed on or after the effective date of this article.

(b) In an action to partition real property under §37-4-1 et seq. of this code, the court shall first determine whether the property is heirs property as that term is defined in §37-16-2 of this code. 

(c) If the court determines the property is heirs property, the property must be partitioned under this article unless all of the cotenants otherwise agree in a record or unless one of the exceptions in §37-16-3(f) or §37-16-3(g) of this code applies to the property. The court may also apply provisions of §37-4-1 et seq. of this code that are not inconsistent with this article.

(d) If the court determines that the property is not heirs property, or if one of the exceptions in §37-16-3(f) or §37-16-3(g) of this code applies to the property, the partition action will be governed under §37-4-1 et seq. of this code.

(e) If a parcel of real property has been severed into a surface estate and a mineral estate and either, but not both, of the severed estates meets the definition of “heirs property,” this article applies only to the estate that meets the definition.

(f) This article does not apply to the partition of severed coal estates.

(g) This article does not apply to the partition of severed oil or natural gas estates if:

(1) under §37B-1-4(a) of this code there are six or fewer oil or natural gas royalty owner cotenants, thereby prohibiting the use of §37B-1-1 et seq. of this code for the development, operation and production of oil, natural gas, or their constituents and the plaintiff in the partition action has made reasonable, good faith efforts to locate and negotiate with all oil or natural gas royalty owner cotenants, but has been unable, despite reasonable, good faith efforts, including the delivery in writing of its final lease offer and the passage of 45 days, to obtain consent to the proposed oil and natural gas development from all royalty owner cotenants; or

(2) under §37B-1-4(a) of this code there are seven or more oil or natural gas royalty owner cotenants and the plaintiff in the partition action has made reasonable, good faith efforts to locate and negotiate with all oil or natural gas royalty owner cotenants, but has been unable, despite reasonable, good faith efforts, including the delivery in writing of its final lease offer and the passage of 45 days, to obtain consent to the proposed oil and natural gas development from royalty owners vested with at least three-fourths of the undivided right to develop, operate and produce oil, natural gas, or their constituents, thereby prohibiting the use of §37B-1-1 et seq. of this code for the development, operation and production of oil, natural gas, or their constituents.

  (h) Any interest in oil or natural gas which is covered by a valid oil or natural gas lease, which was negotiated through reasonable, good faith efforts, shall not be sold or transferred in a partition by sale under this article or under §37-4-1 et seq. of this code.”

And,

On page five, section five, after the section heading, by striking the remainder of the section in its entirety and inserting in lieu thereof the following:

“(a) The court, in its discretion, may appoint commissioners to make an assessment of partition alternatives under §37-16-8 of this code.

(b) If the court appoints commissioners pursuant to §37-16-5(a) of this code, each commissioner must be disinterested and impartial and not a party to or a participant in the action.

(c) If the court appoints commissioners under §37-16-5(a) of this code, the commissioners must consider all of the factors in §37-16-9 of this code in evaluating whether partition in kind would result in substantial prejudice to the cotenants as a group. The commissioners must file a report with the court that provides an assessment of whether partition in kind would result in substantial prejudice to the cotenants as a group and this assessment must be supported by sufficient facts.”

Adopted

Rejected