Property Law
From KatrinaLegalRelief
As a result of a natural disaster, property is often lost or scattered on land belonging to others. Even land and buildings may end up on another person’s property, raising issues of ownership, liability, responsibility for removal, and the location of land lines. Also, people affected by a storm may be forced to use private property because of emergency conditions, raising questions of trespass and defense of property. After a storm, questions arise regarding the obligation of institutions and goverments to hold property for individuals, and of the right of governments to remove debris on private property.
Claiming financial and personal property
As a general rule, lost or mislaid property does not belong to the finder or to the person on whose land it is located -- ownership remains with the real owner unless he or she abandons the property. In some cases, for example, with financial property, abandonment is presumed after a certain period of time. Disposition of unclaimed financial property is governed by Mississippi’s "Uniform Disposition of Unclaimed Property Act.” Miss. Code Ann. § 89-12-1 (2005). Under this act, financial property includes bonds, checks, deposits, interest, dividends, income, credit balances, gift certificates, security deposits, refunds, credit memos, unpaid wages, amounts due and amounts payable under the terms of insurance policies, unused airline tickets, monies deposited to redeem stocks, bonds, coupons, and other securities. Disposition of lost items recovered by a municipality is governed by Miss. Code Ann. § 21-39-21, which allows sale of the item four months after public notice.
How long does a person have to claim financial property held by an entity or person affected by a disaster?
An owner of financial property must notify the holder of his or her interest within five years. This applies to businesses, governmental agencies, or individuals who possess property and/or owe a debt obligation. Financial property is considered abandoned after five years. However, it is advisable to claim financial property as soon as possible after a disaster.
What steps should a person take to claim financial property?
The owner should contact the holder of funds in writing (preferably by certified mail) notifying the holder of his or her interest, with directions for withdrawal, transfer, or other disposition.
What happens to personal property such as cars, equipment, furniture, or other items that have been recovered by state or municipal authorities?
When a municipality receives property that has been lost, stolen, abandoned, or misplaced, it is required by law to post a notice in three public places describing the property and to notify the owner by mail if the owner is known. Property that is not claimed within 120 days may be sold at auction. (Or 90 days for a motor vehicle or bicycle). Notices of the auction must be posted for 10 days in 3 public places within the municipality.
Is there any way to recover property that has already been sold?
An owner is entitled to the proceeds of the sale if he or she proves ownership within 90 days of the sale. A state of emergency may impact the procedures outlined by each of these statutes. Miss. Code Ann. § 33-15-17(b) (2005).
Who owns personal property that is carried onto the land of another?
As a general rule, an owner does not lose title to property just because it is lost, mislaid, or carried onto the land of another.
Movement of Land
During a storm, land itself may shift as trees, buildings, and even soil are transferred from one person’s property to another. A storm may change the contours of water-edged property, raising questions about land lines. As a general rule, property rights depend on whether the movement of land is sudden or gradual. Accretion is a gradual change in land, while avulsion is a sudden change in land caused by water movement. Ownership will not change if soil, trees, or other parts of property shift to the land of another as a result of avulsion, or sudden movement. Events such as hurricanes will likely be categorized as avulsive. Both doctrines are recognized in Mississippi, as well as in federal common law. See generally, Sharp v. Learned, 14 So. 2d 218 (Miss. 1943).
What happens to property lines if land has been washed away because of water movement? What happens when an owner gains additional land as a result of water movement?
An owner does not lose title to a part of a water-edged property that has been washed away suddenly since the change was avulsive and not by accretion. Similarly, an owner does not gain title to property that has shifted to his or her land by avulsive movement.
How do I prove land lines after a storm that moves soil?
Evidence such as surveys, maps, charts, expert testimony, and lay witness testimony can be used to determine whether the process was avulsion or accretion.
Removal of Debris
As between neighbors, who is responsible for removing debris from a storm?
Each person is responsible for removing debris from his or her own property. A neighbor whose personal property has been transferred to another’s does not have a legal obligation to remove the debris.
Does the government have a duty or right to remove debris?
In the event of a natural disaster, affected county or municipal governments may go onto private property to aid in removing debris and to prevent further damage to such property at the request of the property owners. They may use public equipment and provide assistance by public employees. Miss. Code Ann. § 33-15-49 (2005). In order for this statute to be in effect, a proclamation must be issued declaring the areas to be disaster areas. In addition, governing authorities may go onto private property to remove debris and to perform any other necessary services to prevent the spread of disease or any other health hazard to the community at large. Upon the Governor’s order, state equipment and employees may also be used to enter private or public land to remove debris.
Liability for damages
Does a property owner have a right to sue another property owner whose property, debris or trees were transported to his land by a storm?
Probably not. Although adjacent property owners generally have a duty to exercise reasonable care and remove dangerous conditions from their property, no one is liable for an injury caused by an act of God. This includes an injury due directly and exclusively to natural causes without human intervention, which could not have been prevented by the exercise of reasonable care and foresight. City of Hattiesburg v. Hillman, 76 So. 368, 370 (Miss. 1954).
What if an owner’s property is damaged by a neighbor’s tree that was dead before the storm?
Visibly dead or decaying trees are an exception to the act of God rule. A city or property owner that has actual knowledge (i.e., visible signs of defects or a dangerous state) will be held liable for damages if they failed to exercise ordinary due care before the storm. Warren v. City of Tupelo, 194 So. 293 (Miss. 1946).
Can the state be held liable for property damage as a result of their emergency management activities?
Neither the state, nor any of its political subdivisions, nor other agencies, or their respective agents, employees or representatives can be held liable for property damage, except in cases of willful misconduct, if they are complying with the Emergency Management Law. Miss. Code Ann. § 33-15-21 (2005).
Are government authorities involved in the clearance and removal operation liable for personal injury or property damage incurred as a result of their actions?
Under the Emergency Management Law, a state employee or agent performing duties related to a removal operation is not liable for property damage except in cases of wilful misconduct, gross negligence, or bad faith. Miss. Code Ann. § 33-15-49 (2005).
If I voluntarily open my property as a shelter during a natural disaster, am I liable to others for any resulting personal injury or property damage?
Any person who voluntarily and without payment allows property to be used as a shelter or who provides assistance to persons during or in recovery from an actual natural disaster, cannot be held liable for causing the death or injury of an another person. Miss. Code Ann. § 33-15-21 (2005).
Use of private property by others
When may an individual in an emergency use the property of another?
The defense of criminal necessity allows an individual to use the property of another without liability for trespass. The defense requires that individuals: (1) must have sought to prevent a significant evil; (2) had no adequate alternative; and (3) the harm caused must not have been disproportionate to the harm avoided. McMillan v. City of Jackson, 701 So. 2d 1105 (Miss. 1997). The defense of necessity ceases if other alternatives (such as shelters) become available to the person. McMillan v. City of Jackson, 701 So. 2d 1105 (Miss. 1997).
When may an owner or occupant use force to remove trespassers?
In most instances, an owner or occupant of property should call police to remove a trespasser. Property owners and occupants should exercise great caution in the use of force to remove trespassers, and should keep in mind that in an emergency some of the rules of trespass may be suspended. A property owner may not remove someone who seeks shelter from a storm if the emergency exception discussed above applies. A property owner may, however, in some cases, remove a trespasser who does not have a right to be on the property. First, trespassers must be warned that they are unwelcome. A property owner may then use only reasonable force, and may not use force that would cause serious injury. Woodard v. Turnipseed, 784 So. 2d 239 (Miss. Ct. App. 2001).
When may an owner or occupant of land use force to protect property?
A property owner may use reasonable and necessary force to protect property only in the case of real and imminent danger, and may not use guns to protect property, even to threaten an individual. Factors in determining whether a danger is real and imminent include the defender's age and size compared to the aggressor's, the inaction of law enforcement, and whether the defender is outnumbered. Tate v. State, 784 So. 2d 208 (Miss. 2001); Woodard v. Turnipseed, 784 So. 2d 239 (Miss. Ct. App. 2001).
