R.Eaton - May 20, 2024 - City's Ability to Return Donated Land

550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 May 20, 2024 Rocky W. Eaton, Esq. Attorney, City of Petal Post Office Box 564 Petal, Mississippi 39465 Re: City’s Ability to Return Donated Land Dear Mr. Eaton: The Office of the Attorney General has received your request for an official opinion. Background According to your request, a citizen of Petal (“City”) contacted City officials to donate six parcels of land to the City. The board of aldermen authorized the acceptance of said property, and a local real estate attorney effectuated the transfer of these parcels to the City. The deeds transferring the ownership of property did not contain a reverter clause. The donating citizen later requested the board of aldermen return three of the six donated parcels due to their donation being a mistake. Question Presented May the City return (at no cost) three of six parcels of land donated to it after finding that the prior donation was a mistake and that the three parcels are surplus property? Brief Response “A municipality may re-convey real property to an original donor without cost only if the instrument by which the property was originally conveyed to the municipality contained a proper reverter clause.” MS AG Op., Lawrence at *1 (June 9, 2006) (citing MS AG Op., Sorrell at *1 (Aug. 20, 2004)). However, the parties may be able to reform the underlying instrument if a mistake is found in the drafting of such. Johnson v. Consolidated Am. Life Ins. Co., 244 So. 2d 400, 402 (Miss. 1971); see Dilling v. Dilling, 734 So. 2d 327, 335 (Miss. Ct. App. 1999) (explaining that “[a] scrivener’s error may be sufficient to warrant the reformation of an instrument.”). Rocky W. Eaton, Esq. May 20, 2024 Page 2 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 Applicable Law and Discussion To begin, this opinion concerns matters of state law only and does not address any contractual considerations. You ask whether the City may return three parcels of land donated to it after finding: (1) the prior donation was a mistake, and (2) the three parcels are surplus property. You note that you are aware of our prior opinions Lawrence and Emerson. In Lawrence, this office opined that “[a] municipality may re-convey real property to an original donor without cost only if the instrument by which the property was originally conveyed to the municipality contained a proper reverter clause.” MS AG Op., Lawrence at *1 (citing MS AG Op., Sorrell at *1). We reached the same conclusion in Emerson, explaining that “once donated property is accepted by a municipality, it becomes municipal property and must be expended or disposed of in the same manner as other municipal property.” MS AG Op., Emerson at *1 (Oct. 21, 2016). That is to say, “the municipality must comply with the provisions of Mississippi Code Annotated Section 21-17-1 or some other statutory provision when disposing of the subject real property.” Id. at *2. Your request states that this matter is distinguishable from Lawrence and Emerson because, here, the City found that the donation was a mistake. While state law does not indicate that a municipality’s finding that a donation was a mistake would allow the municipality to return the donated parcels at no cost to the original donor, the parties may be able to reform the underlying instrument. As stated by the Mississippi Supreme Court, “[t]he mistake that will justify a reformation must be in the drafting of the instrument, not in the making of the contract.” Johnson, 244 So. 2d at 402. This requirement was reiterated by the Mississippi Court of Appeals in Dilling, where it went on to note that “[a] scrivener’s error may be sufficient to warrant the reformation of an instrument.” Id. at 335. This said, whether a mistake is of the type contemplated in these opinions is a question of fact upon which this office may not opine. See Miss. Code Ann. § 7-5- 25. Finally, you provide that the City also found that the subject parcels were surplus property. Pursuant to Section 21-17-1(3)(a)(i), a municipality’s: governing authority may donate [surplus] lands to a bona fide not-for-profit civic or eleemosynary corporation organized and existing under the laws of the State of Mississippi and granted tax-exempt status by the Internal Revenue Service and may donate such lands and necessary funds related thereto to the public school district in which the land is situated for the purposes set forth herein. (emphasis added); see also MS AG Op., Eubanks at *1 (Apr. 15, 2005) (noting same in relation to disposal of real property donated to a municipality). Whether the subject donor would be a proper recipient of surplus property pursuant to Section 21-17-1(3) is also a factual determination upon which this office may not opine. See Miss. Code Ann. § 7-5-25. Rocky W. Eaton, Esq. May 20, 2024 Page 3 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 Otherwise, “[a] municipality may re-convey real property to an original donor without cost only if the instrument by which the property was originally conveyed to the municipality contained a proper reverter clause.” MS AG Op., Lawrence at *1 (citing MS AG Op., Sorrell at *1). If this office may be of any further assistance to you, please do not hesitate to contact us. Sincerely, LYNN FITCH, ATTORNEY GENERAL By: /s/ Maggie Kate Bobo Maggie Kate Bobo Special Assistant Attorney General