MS 2020-07-A-Shaw-May-13-2020-Authority-of-Town-to-Remove-Dilapidated-Building 2020-05-13

Can a Mississippi town tear down a dilapidated building even when the owner is still living in it?

Short answer: Yes, if the town gives proper notice and a hearing under Miss. Code Ann. § 21-19-11, finds the building a menace to public health and safety, and records its findings on the official minutes. Owner occupancy does not block the removal.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

Mayor Shaw of Wesson asked whether his town could remove a dilapidated outbuilding even though the property owner was using it as his residence. Two years earlier the owner's main house had burned down; he had since moved into a shed on the lot, and the town had been getting complaints about its condition.

The Attorney General said yes. Miss. Code Ann. § 21-19-11 gives a municipality authority to clean up private property, including by removing dilapidated buildings, if the property is determined at a properly noticed hearing to be a menace to public health, safety, and welfare. The owner's occupancy is not a bar to removal. What matters is process: the town has to give the statute's required notice, hold the hearing, and record specific factual findings on its official minutes. With those steps, the demolition is authorized.

Two prior AG opinions, Dawes (August 8, 2008) and Daughdrill (April 6, 2007), reached the same conclusion. The Attorney General emphasized "strict compliance" with the notice and hearing procedure as the condition for the authority to attach.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Mississippi gives municipalities broad property-cleanup authority through Miss. Code Ann. § 21-19-11. The statute is triggered either on the governing authority's own motion or on a petition signed by a majority of residents living within 400 feet of the property in question. The town board then holds a hearing. The notice rules are specific:

A mailed notice must go out by U.S. Mail at least two weeks before the hearing, both to the property address and to the address where the ad valorem tax notice is sent.
A posted notice must be put up for at least two weeks before the hearing, on the property and at city hall (or another customary posting location).
The notice must inform the owner that an adverse adjudication will let the municipality reenter the property without further hearing for one year.
A copy of the mailed and posted notice must be recorded in the minutes alongside the hearing record.

If, at the hearing, the governing authority adjudicates the property a menace to public health, safety, and welfare, and the owner does not act first, the municipality may proceed to clean. The statute lists the kinds of cleanup actions allowed: cutting grass, filling cisterns, removing rubbish, removing dilapidated fences, outside toilets, dilapidated buildings, slabs, and personal property, draining cesspools and standing water. Removal of personal property under § 21-19-11 is exempted from the usual procedures of Miss. Code Ann. § 21-39-21.

The Attorney General's earlier opinions to Dawes and Daughdrill treated demolition of structurally dangerous buildings as squarely within the cleanup authority. The Shaw opinion confirms that owner occupancy does not change the analysis, the question is whether the building is a menace, not whether it is occupied.

The opinion also flags the practical due process risk: skipping a step (mailing to only one address, posting for less than two weeks, failing to record notice in the minutes) can defeat the action. Mississippi courts will strictly construe procedural compliance because demolition is a permanent deprivation of property.

Common questions

Q: What if the owner offers to make repairs?
A: The statute lets the owner do the cleanup himself before the municipality acts. If the building is a residence, a credible repair plan is worth pursuing in advance of the hearing because the AG's analysis assumes the menace finding is unrebutted.

Q: Does the town need a court order to demolish?
A: No. Section 21-19-11 vests the authority directly in the governing body following the statutory hearing. A separate court order is not required, though the owner can seek judicial review of the adjudication.

Q: What counts as a "menace to the public health, safety and welfare"?
A: The opinion does not define the term, but factors typically include structural failure, fire hazard, vermin or sanitation problems, hazards to neighbors, and code-violation severity. The board must make a factual finding, not just recite the statutory phrase.

Q: What about the personal belongings inside the building?
A: The statute expressly carves out the removal of personal property from § 21-39-21's normal procedures. The municipality can remove personal property as part of the cleanup, but reasonable practice is still to give the owner notice and a chance to retrieve belongings before demolition.

Q: Is the year of "reentry without further hearing" automatic?
A: It applies if the original notice told the owner about it, and the municipality posts a 7-day reentry notice on the property and at city hall. Without those steps, additional cleanups within the year would need a fresh hearing.

Citations and references

Statutes:
- Miss. Code Ann. § 21-19-11 (Municipal cleanup, demolition, and reentry authority)
- Miss. Code Ann. § 21-39-21 (Personal property removal procedures, expressly inapplicable to § 21-19-11 cleanups)

Source

Original opinion text

May 13, 2020

Mayor Alton Shaw
Town of Wesson
Post Office Box 297
Wesson, Mississippi 39191

Re: Authority of Town to Remove Dilapidated Building

Dear Mayor Shaw:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Question Presented

If it is determined by the Wesson Board of Aldermen, at a hearing conducted in accordance with Miss. Code Ann. Section 21-19-11 that a property is a menace to public health, safety and welfare, can the dilapidated building located thereon, occupied by the owner as a residence, be removed pursuant to Section 21-19-11?

Background Facts

Approximately two years ago, a residence in the Town of Wesson was destroyed by fire. The occupant of the residence now has moved into an outbuilding or shed on the property and has made it his permanent residence. The building is in extremely poor condition and the municipal governing authorities have received numerous complaints from citizens about its condition.

Brief Response

A municipality may remove dilapidated buildings and structures in accordance with the authority granted by Section 21-19-11 if it provides due process to the property owner and makes the requisite factual findings upon its official meeting minutes.

Applicable Law and Discussion

Section 21-19-11 authorizes a municipality to clean-up private property it has determined to be a menace to the public health and safety of the community. Section 21-19-11 requires notice, a hearing and adjudication to be provided to the property owner as shown below. In pertinent part, Section 21-19-11(1) states that:

To determine whether property or parcel of land located within a municipality is in such a state of uncleanliness as to be a menace to the public health, safety and welfare of the community, a governing authority of any municipality shall conduct a hearing, on its own motion, or upon the receipt of a petition signed by a majority of the residents residing within four hundred (400) feet of any property or parcel of land alleged to be in need of the cleaning. Notice shall be provided to the property owner by:

(a) United States mail two (2) weeks before the date of the hearing mailed to the address of the subject property and to the address where the ad valorem tax notice for such property is sent by the office charged with collecting ad valorem tax; and

(b) Posting notice for at least two (2) weeks before the date of a hearing on the property or parcel of land alleged to be in need of cleaning and at city hall or another place in the municipality where such notices are posted.

Any notice required by this section shall include language that informs the property owner that an adjudication at the hearing that the property or parcel of land is in need of cleaning will authorize the municipality to reenter the property or parcel of land for a period of one (1) year after final adjudication without any further hearing if notice is posted on the property or parcel of land and at city hall or another place in the municipality where such notices are generally posted at least seven (7) days before the property or parcel of land is reentered for cleaning. A copy of the required notice mailed and posted as required by this section shall be recorded in the minutes of the governing authority in conjunction with the hearing required by this section.

If, at such hearing, the governing authority shall adjudicate the property or parcel of land in its then condition to be a menace to the public health, safety and welfare of the community, the governing authority, if the owner does not do so himself, shall proceed to clean the land, by the use of municipal employees or by contract, by cutting grass and weeds; filling cisterns; removing rubbish, abandoned or dilapidated fences, outside toilets, abandoned or dilapidated buildings, slabs, personal property, which removal of personal property shall not be subject to the provisions of Section 21-39-21, and other debris; and draining cesspools and standing water therefrom. . . .

We have recognized the authority of a municipality, pursuant to Section 21-19-11, to remove dilapidated buildings and structures it has determined to be a menace to the public health and safety of the community, provided it has strictly complied with the notice and hearing requirements and made the requisite factual findings. MS AG Op., Dawes (August 8, 2008); MS AG Op., Daughdrill (April 6, 2007). Thus, if the Board of Aldermen has fulfilled the due process requirements of notice and a hearing and makes an adjudication the building in question is a menace to the public health, safety and welfare of the community, it is authorized under Section 21-19-11 to remove such dilapidated building from the property.

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/ Avery Mounger Lee
Avery Mounger Lee
Special Assistant Attorney General