If a nonresident alien buys more than 320 acres for industrial development in Mississippi, does the statute automatically void the transfer?

Plain-English summary

Section 89-1-23 generally prohibits nonresident aliens from acquiring or holding land in Mississippi, with several exceptions. One exception lets nonresident aliens "acquire and hold not to exceed three hundred twenty (320) acres of land in this state for the purpose of industrial development thereon."

Commissioner Gipson asked the AG a sharp question: if a single foreign investor takes title to more than 320 acres of industrial-development land, is the deed transferring that land "null and void"?

The AG said § 89-1-23 does not declare transfers contrary to its limits null and void. Instead, it says land held or acquired contrary to the section "shall escheat to the state." The opinion contrasts that text with § 29-1-75(1), which declares a patent issued in contravention of that provision void.

Practical implications:

• The opinion names escheat as the statutory consequence; it does not decide whether a particular deed is effective or specify an escheat procedure.
• The 320-acre cap does not apply to corporations whose stock is partially or wholly owned by nonresident aliens. The statute itself carves this out, so the cap reaches individual nonresident-alien owners but not foreign-owned corporations.
• Federal treaty obligations override the statute. De Tenorio v. McGowan held that the statute "yields, of course, to any applicable provision of any valid Treaty of the United States with a foreign country."

The AG declined to opine on whether the terms of a particular contract would be unlawful and thus null and void, because its official opinions address questions of state law.

What this means for you

If you're a foreign individual considering a Mississippi land purchase

The 320-acre industrial-development cap is real, but understand its scope:

• It applies to nonresident aliens holding land as individuals. The statute reads as targeting individual ownership.
• The cap does not apply if you hold land through a corporation in which you (and others) own stock. That is an explicit statutory exception in § 89-1-23.
• A separate 5-acre limit applies to nonresident aliens for residential purposes.
• The statute yields to applicable provisions of valid U.S. treaties; the opinion does not decide whether a particular treaty applies.
• Land held or acquired contrary to § 89-1-23 is subject to the statute's escheat provision. The AG does not decide whether a particular deed transfers title.

If you're a Mississippi real estate attorney or title company

When examining title for or against a nonresident alien:

• Check whether the buyer is an individual or a corporation. The statute says the 320-acre industrial-development limit does not apply to corporations whose stock is partly or wholly owned by nonresident aliens.
• Determine whether the purchaser falls within the statute's term "nonresident alien"; the opinion notes that the statute does not define it.
• Check the 320-acre statutory limit for industrial-development land held by a nonresident alien.
• For residential purchases by nonresident aliens, watch the 5-acre cap.
• Check whether an applicable provision of a valid U.S. treaty affects the transaction; De Tenorio says the statute yields to such a provision.
• Check the statute's general prohibition and listed exceptions for any proposed use other than industrial development or residence.

If you're a Mississippi state agriculture or lands officer

Under this opinion, § 89-1-23 names escheat and does not itself declare a transfer contrary to its limits null and void. Section 89-1-23 says land held or acquired contrary to the section "shall escheat to the state," and the AG declined to treat the transfer as null and void. The opinion does not lay out an enforcement procedure; it identifies escheat as the statutorily named remedy.

If you're a Mississippi legislator concerned about foreign land ownership

The opinion highlights two features of § 89-1-23 a legislator should be aware of. First, the 320-acre limitation "shall not apply to corporations in which the stock thereof is partially or wholly owned by nonresident aliens," so it reaches individual nonresident-alien owners but not foreign-owned corporations. Second, the AG drew an express contrast between § 89-1-23, which provides for escheat, and § 29-1-75(1), which makes a patent issued in contravention "void." The opinion does not recommend any legislative change; it reads the statute as written.

Common questions

Q: What does "nonresident alien" mean?
A: The opinion notes that the statute does not define the term and says its language implies that the term applies only to individuals. It does not supply a further definition.

Q: How does the 320-acre cap interact with residential land?
A: The quoted statute separately allows up to 320 acres for industrial development and up to five acres for residential purposes. The opinion does not decide how those allowances interact in a particular transaction.

Q: What happens if the land is "acquired for industrial development" but stops being used for industrial development?
A: The statute says the land "shall escheat to the state." The remedy is the same as for over-the-cap acquisition.

Q: Does § 89-1-23 contain a marriage-based exception?
A: Yes. It covers a person who was or is a U.S. citizen and became or becomes an alien by marrying a citizen of a foreign country. The quoted statute permits that person to inherit, hold, transmit by descent, or transfer land free from escheat if the land has not already escheated by final court order.

Q: What about foreign-owned corporations specifically?
A: The statute is explicit: "[t]he limitation set forth in this paragraph shall not apply to corporations in which the stock thereof is partially or wholly owned by nonresident aliens." The AG says the 320-acre industrial-development limit does not apply to such corporations; it does not decide the validity of any particular corporate acquisition.

Q: How does treaty law affect this?
A: De Tenorio v. McGowan, 510 F.2d 92, 95 (5th Cir. 1975), held the statute "yields, of course, to any applicable provision of any valid Treaty of the United States with a foreign country, constituting a part of the Supreme Law of the Land." Whether a particular nonresident alien's home country has such a treaty is a separate question the opinion does not resolve.

Q: Are there special rules for citizens of Syria or Lebanon?
A: Yes. Section 89-1-23 contains a specific provision: "Nonresident aliens who are citizens of Syria or the Lebanese Republic may inherit property from citizens or residents of the State of Mississippi."

Background and statutory framework

Section 89-1-23 sets a general rule that nonresident aliens "shall not hereafter acquire or hold land," then layers several exceptions on top of it. As quoted in the opinion, those include:

• A lien to secure a debt, with post-foreclosure ownership for up to 20 years or until the holder becomes a citizen.
• A marriage-based exception for a U.S. citizen who became an alien by reason of marriage to a citizen of a foreign country, allowing that person to inherit, hold, transmit, or transfer land free from escheat (if no escheat has already occurred by court order).
• An inheritance exception for nonresident aliens who are citizens of Syria or the Lebanese Republic.
• A 320-acre cap on land held for industrial development, plus a separate 5-acre cap for residential purposes.
• A carve-out providing that the 320-acre limitation does not apply to corporations whose stock is partially or wholly owned by nonresident aliens.

On top of the statute, De Tenorio v. McGowan establishes that § 89-1-23 yields to any applicable valid U.S. treaty under the Supremacy Clause.

The consequence the statute names for land held or acquired contrary to it is escheat: "[a]ll land held or acquired contrary to this section shall escheat to the state." The AG contrasted that with § 29-1-75(1), under which a patent issued in contravention is "void," while declining to decide whether a specific contract is null and void.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25 (AG opinion authority)
• Miss. Code Ann. § 29-1-75(1) (state patent voidness comparison)
• Miss. Code Ann. § 89-1-23 (nonresident alien land ownership; escheat remedy)

Case:

• De Tenorio v. McGowan, 510 F.2d 92, 95 (5th Cir. 1975), § 89-1-23 yields to valid U.S. treaties

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/A.Gipson-May-9-2023-Nonresident-Aliens-Owning-Over-320-Acres-of-Land-in-Mississippi.pdf

Original opinion text

May 9, 2023

Andy Gipson, Commissioner
Mississippi Department of Agriculture & Commerce
Post Office Box 1609
Jackson, Mississippi 39215-1609

Re: Nonresident Aliens Owning Over 320 Acres of Land in Mississippi

Dear Commissioner Gipson:

The Office of the Attorney General has received your request for an official opinion.

Question Presented

Based on the restrictions imposed in Mississippi Code Annotated Section 89-1-23, is the transfer of title in land to any single foreign investor in excess of 320 acres null and void?

Brief Response

Section 89-1-23 places restrictions on nonresident aliens acquiring or holding land in Mississippi, including the 320-acre industrial development limitation you reference. However, regarding the consequence of violating Section 89-1-23, the statute only states that "[a]ll land held or acquired contrary to this section shall escheat to the state."

Applicable Law and Discussion

Section 89-1-23 provides, in part:

> Except as otherwise provided in this section, nonresident aliens shall not hereafter acquire or hold land, but a nonresident alien may have or take a lien on land to secure a debt, and at any sale thereof to enforce payment of the debt may purchase the same, and thereafter hold it, not longer than twenty (20) years, with full power during said time to sell the land, in fee, to a citizen; or he may retain it by becoming a citizen within that time. All land held or acquired contrary to this section shall escheat to the state; but a title to real estate in the name of a citizen of the United States, or a person who has declared his intention of becoming a citizen, whether resident or nonresident, if he be a purchaser or holder, shall not be forfeited or escheated by reason of the alienage of any former owner or other person.
>
> Any person who was or is a citizen of the United States and became or becomes an alien by reason of marriage to a citizen of a foreign country, may hereafter inherit, or if he or she heretofore inherited or acquired or hereafter inherits, may hold, own, transmit by descent or transfer land free from any escheat to the State of Mississippi, if said land has not heretofore escheated by final valid order or decree of a court of competent jurisdiction.
>
> Nonresident aliens who are citizens of Syria or the Lebanese Republic may inherit property from citizens or residents of the State of Mississippi.
>
> Nonresident aliens may acquire and hold not to exceed three hundred twenty (320) acres of land in this state for the purpose of industrial development thereon. In addition, any nonresident alien may acquire and hold not to exceed five (5) acres of land for residential purposes. The nonresident alien may dispose of any such land, but if any land acquired for industrial development ceases to be used for industrial development while owned by a nonresident alien, it shall escheat to the state. The limitation set forth in this paragraph shall not apply to corporations in which the stock thereof is partially or wholly owned by nonresident aliens.

(Emphasis added).

As shown, Section 89-1-23 contains certain exceptions to the general prohibition of nonresident aliens acquiring or holding land in Mississippi, including the 320-acre industrial development limitation referenced in your request. Land acquired pursuant to national treaties is also exempt from this prohibition. See De Tenorio v. McGowan, 510 F.2d 92, 95 (5th Cir. 1975) ("This statutory provision yields, of course, to any applicable provision of any valid Treaty of the United States with a foreign country, constituting a part of the Supreme Law of the Land . . . .").

We note that although nonresident alien is not defined by statute, the language of Section 89-1-23 implies that the term only applies to individuals. Further, the statute explicitly provides that the 320-acre industrial development limitation "shall not apply to corporations in which the stock thereof is partially or wholly owned by nonresident aliens." Miss. Code Ann. § 89-1-23.

Regarding the consequence of violating Section 89-1-23, the statute does not provide that any transfers in title made contrary to the limitations therein shall be null and void. Compare Miss. Code Ann. § 89-1-23, with Miss. Code Ann. § 29-1-75(1) ("[Every patent issued in contravention hereof shall be void."). Rather, Section 89-1-23 only states that "[a]ll land held or acquired contrary to this section shall escheat to the state."

Beyond this, we cannot by official opinion address whether the terms or provisions of a specific contract would be unlawful and therefore null and void. Pursuant to Section 7-5-25, this office is authorized to issue official opinions upon questions of state law only.

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