Mississippi Real Estate Practices

Attorney Involvement

Please describe any requirements under applicable state law for attorney, abstractor or other special professional involvement, for example, in the search, examination, opinion of title, signing, closing, disbursement, recording, preparation of documents, and/or policy-issuance.

Attorneys must prepare every legal document not prepared by a party to the transaction, including Warranty Deeds, Promissory Notes and Deeds of Trust, etc. Non-Attorneys may conduct closings but may not give legal advice.

An opinion of title must be prepared by an attorney but an opinion of title is not required to issue a title insurance policy.

Cancellation/Commitment Fee

Does your state permit or require a cancellation fee or commitment fee upon cancellation?

A cancellation fee is permitted but not required and is not customarily charged.

Certificate of Release (of Mortgage)

If anyone other than the lender (such as a title agent, settlement agent, underwriter or attorney) has the authority to release the security instrument, please describe.

Lender or Trustee named in the Deed of Trust may execute release.

Deeds

Please describe the kinds of deeds that are customary for commercial and residential transactions.  Please describe the kinds of deeds that are generally not insurable.

Warranty Deed or Special Warranty Deed preferred.  Generally do not insure Quitclaim Deeds.

Joinder of Spouses

If a non-title holding spouse is required to join in the execution of a deed or a security instrument, please describe.  Any analogous rights, such as those in a civil union or equivalent, should also be addressed. 

Non-Title holding spouse must sign conveyance or encumbrance of Homestead Property

Civil unions or equivalent are not recognized in MS.

Mortgage Tax

Is there a mortgage tax in your state?  If yes, is it uniform across the state or does it vary?  If it is uniform, please describe.  

There is no mortgage tax in Mississippi.

Payment Customs

Who customarily pays for:

(a) Owner’s Policy?
(b) Transfer Tax & Recording Fee?
(c) Survey Charges?
(d) Closing/Settlement Fees?

Who customarily pays for:

(a) Owner’s Policy?   Buyer
(b) Recording Fee?   Buyer
(c) Survey Charges?   Buyer or Seller
(d) Closing/Settlement Fees?  Seller

Policy Countersignatures

Please describe any statutory or regulatory requirements for countersignatures in order to issue the policy (for example, residency requirements).

There are no special requirements for the countersignature so long as authorized officer of the issuing title agent.

Real Estate Taxes

Please describe the general tax year, due dates, and delinquency dates, including lien dates and payment cycle.

Real Property taxes are paid in arrears.  Taxes for the prior year are due January 1 of the next year and past due after February 1.  If taxes are not paid by August, property is sold at a public tax sale. Owner has 2 years to redeem from date of Tax Sale, and if fails to timely redeem the Tax Deed will be issued to tax sale purchaser.

Search and Examination Fees

Is it permissible and/or customary to charge a separate search and/or examination fee, and under what circumstances?  If your jurisdiction is all-inclusive, please state that.

Separate charge is permissible and varies from agent to agent as to whether it is charged.

Search Requirements

Is there a minimum period of time for a title search required: (a) by state law, (b) pursuant to marketable record title acts, or (c) by any other applicable title examination standards (e.g., state bar association)?  Please respond to each category.  If a minimum search period exists for any category, please state it.

By custom and practice, minimum search period is 32 years.

Security Instruments (Deed of Trust vs. Mortgage)

Please describe the customary and permissible form(s) of security instruments used in your state. 

Who can be listed as the trustee on the Deed of Trust (e.g., residency and/or natural person requirements, etc.)? Can an underwriter or title agent be designated as the trustee, and, if so, is it customary?

Deed of Trust. Any natural person or legal entity can be the Trustee. No residency requirement.

Standard Exceptions and Requirements

Please identify the standard exceptions and requirements that are customarily used in your state.

Standard exceptions:

1.         Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the Proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this Commitment.

2.         Standard exceptions:

            (a)  Rights or claims of parties in possession not recorded in the Public Records.

            (b)  Easements or claims of easements, not recorded in the Public Records.

            (c)  Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey and inspection of the premises.

            (d) Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not recorded in the Public Records.

            (e)  Homestead or other marital rights of the spouse, if any, of any individual insured.

            (f)   Any titles or rights asserted by anyone including but not limited to persons, corporations, governments or other entities, to tide lands, or lands comprising the shores or bottoms of navigable rivers, lakes, bays, ocean or gulf, or lands beyond the line of the harbor or bulkhead lines as established or changed by the United States Government or water rights, if any.

            (g)  Any prior reservation or conveyance, together with release of damages, of materials of every kind and character, including, but not limited to oil, gas, sand and gravel in, on or under the subject property.

            (h)  Taxes or special assessments which are not recorded as existing liens in the public records.

3.         Ad valorem taxes for the year _(year of closing)  and subsequent years, which are liens, but are not yet due and payable.

Standard Requirements:

1.         Show that restrictions or restrictive covenants have not been violated.

2.         Payment to or for the account of the grantors or mortgagor of the full consideration for the estate or interest mortgage or lien to be insured.

3.         Furnish proof of payment of all bills for labor and material furnished or to be furnished in connection with improvements erected or to be erected.

4.         Pay all general and special taxes now due and payable.

5.         Record instrument conveying or encumbering the estate or interest to be insured.

State-specific Policy Variations

If there are state-specific changes to the provisions in the ALTA policies (e.g., Arbitration, Minerals), please describe.

None.

Title Insurance Form and Filing Regulations

Please describe the form and/or rate filing requirements, if any, related to policies and endorsements.  Please describe any applicable rating bureau. 

None.  Rates are published.

Transfer Taxes

Is there a transfer tax in your state? If yes, is it uniform across the state or does it vary?  If it is uniform, please describe.

No transfer tax.

Usury

Is usury coverage available?

Yes, coverage is available.  Usury statute is found at § 75-17-1.

Withholding Taxes

What are your state’s requirements, if any, with regard to withholding proceeds from a sale, similar to but not including FIRPTA?

Five percent withholding of the net proceeds for Non-Resident Seller.

Witness Requirements

Are witnesses required on a deed or security instrument?  If so, please describe.

None.