2005 Nevada Revised Statutes - Chapter 149 — Notes, Mortgages and Leases

CHAPTER 149 - NOTES, MORTGAGES AND LEASES

BORROWING MONEY AND MORTGAGING PROPERTY

NRS 149.010 Authorizationto borrow; purposes warranting borrowing; joint borrowing.

NRS 149.020 Petition.

NRS 149.030 Hearingand order.

NRS 149.040 Executionof instruments.

NRS 149.050 Effectof proceedings under NRS 149.010 to 149.050, inclusive.

LEASING

NRS 149.060 Authorizationto lease.

NRS 149.070 Petition.

NRS 149.080 Hearingon petition; order directing personal representative to make lease; terms oflease; recordation of copy of order.

NRS 149.090 Executionof lease; effect of omission, error or irregularity in proceedings.

NRS 149.100 Leasewithout court order.

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NOTE: The section added to chapter 149 of NRS by section 332 of chapter 467,Statutes of Nevada 1999, has been codified as NRS148.410.

BORROWING MONEY AND MORTGAGING PROPERTY

NRS 149.010 Authorizationto borrow; purposes warranting borrowing; joint borrowing.

1. If it appears to be to the advantage of the estateto borrow money upon a note or notes, unsecured or to be secured by a securityagreement or other lien upon the personal property of the decedent or any partthereof, or to be secured by a mortgage upon the real property of the decedentor any part thereof, or to mortgage or create a security interest or other lienupon the property or any part thereof, in order to pay the debts of the decedent,or devises, or expenses or charges of administration, or to pay, reduce, extendor renew a security interest or agreement or lien or mortgage existing uponproperty of the estate, and as often as occasion arises in the administrationof the estate, the court may direct the personal representative to borrow themoney and to execute such note or notes and, in a proper case, to execute suchmortgage, or to give other security by way of security interest or other lien,or may authorize, in a proper case, the execution of an extension agreement.

2. If property of the estate consists of an undividedfractional interest in real or personal property, and it appears to be to theadvantage of the estate to borrow money in order to improve, utilize, operateor preserve the property jointly with the other co-owner or co-owners, or inorder to pay, reduce, extend or renew some security interest or agreement, lienor mortgage existing upon the property, including the other undivided interestor interests therein, the court may direct the personal representative toborrow the money required for those purposes and to join with the owner orowners of the other undivided interest or interests in the property, or theirduly authorized representatives or agents, in the execution of such joint andseveral note or notes as may be necessary, and to join with the owner or ownersof the other undivided interest or interests in the property, or their dulyauthorized representatives or agents, in the execution of such securityagreement, lien or mortgage as may be required to secure the payment of thenote or notes.

[175:107:1941; 1931 NCL 9882.175](NRS A 1969, 3; 1999, 2325)

NRS 149.020 Petition.

1. The personal representative or an interested personshall file a petition showing:

(a) The particular purpose or purposes for which theorder is sought.

(b) The necessity for or advantage to accrue from entryof the order.

(c) The amount of money proposed to be raised, if any.

(d) The rate of interest to be paid.

(e) The length of time the note or notes are to run.

(f) A general description of the property proposed tobe mortgaged or subjected to the security agreement or other lien.

2. The clerk shall set the petition for hearing andthe petitioner shall give notice of the hearing in the manner required by NRS 155.010 or as the court by order mayrequire.

[176:107:1941; 1931 NCL 9882.176](NRS A 1969, 4;1975, 1775; 1999,2325)

NRS 149.030 Hearingand order.

1. At the time appointed, the court, upon proof thatdue notice of the hearing has been given, shall proceed to hear the petitionand any objection that may have been filed or presented. If, after a hearing,the court is satisfied that it will be to the advantage of the estate, it shallenter an order directing the personal representative to borrow the money and toexecute the note or notes, and, in a proper case, to execute the mortgage orgive other security by way of security interest or other lien.

2. The court may direct that a lesser amount than thatnamed in the petition be borrowed, and may prescribe the maximum rate ofinterest and the period of the loan, and require that the interest and thewhole or any part of the principal be paid, from time to time, out of the wholeestate or any part thereof, and that the personal property to be subject to thesecurity agreement or other lien, or any improvements on the premises to bemortgaged, are insured for the further security of the lender, and the premiumspaid from the assets of the estate.

3. A certified copy of the order must be recorded inthe office of the county recorder of every county in which the propertyaffected by the order, or any portion thereof, is located.

[177:107:1941; 1931 NCL 9882.177](NRS A 1969, 4; 1999, 2326)

NRS 149.040 Executionof instruments. The personal representativeshall execute, acknowledge and deliver the mortgage or other security, asdirected, setting forth therein that it is made by authority of the order,giving the date of the order. The note or notes and mortgage or other securitymust be signed by the personal representative as such, and create no personalliability against him.

[178:107:1941; 1931 NCL 9882.178](NRS A 1999, 2326)

NRS 149.050 Effectof proceedings under NRS 149.010 to 149.050, inclusive.

1. A mortgage or security agreement so made is effectualto mortgage or subject to the security agreement all right, title, interest andestate which the decedent had in the property described therein at the time ofhis death or previously and any right, title or interest in the propertyacquired by the estate of the decedent, by operation of law or otherwise, sincethe time of his death.

2. Jurisdiction of the court to administer the estateof the decedent is effectual to vest the court with jurisdiction to enter theorder for the note or notes and mortgage or security agreement, and thejurisdiction conclusively inures to the benefit of the mortgagee named in themortgage or the secured party named in the security agreement and the heirs,successors and assigns of the secured party.

3. No omission, error or irregularity in theproceedings impairs or invalidates them or the note or notes or mortgage orsecurity agreement given in pursuance thereof, and the mortgagee or securedparty and the heirs, successors and assigns of the secured party, have andpossess the same rights and remedies on the note or notes and mortgage orsecurity agreement as if it had been made by the decedent before his death,except that, upon any foreclosure or sale under the mortgage or securityagreement, if the proceeds of the sale of the encumbered property areinsufficient to pay the note or notes, the mortgage or security agreement, andthe costs or expenses of sale, no judgment may be had or allowed except incases where the note or notes or mortgage or security agreement was given topay, reduce, extend or renew a lien, mortgage or security agreement existing atthe time of the death of the decedent and the indebtedness secured thereby wasan allowed and approved claim against the estate, in which case the part of theindebtedness remaining unsatisfied must be classed and paid with other allowedclaims against the estate.

[179:107:1941; 1931 NCL 9882.179](NRS A 1969, 5; 1999, 2326)

LEASING

NRS 149.060 Authorizationto lease. If it appears to be to the advantageof the estate to lease any real property of the decedent, and as often asoccasion arises in the administration of the estate, the court may direct thepersonal representative to execute the lease.

[180:107:1941; 1931 NCL 9882.180](NRS A 1999, 2327)

NRS 149.070 Petition.

1. To obtain such an order the personal representativeor an interested person shall file a petition, showing the advantage to accruefrom giving the lease, a general description of the property proposed to beleased, and the term, rental and general conditions of the proposed lease.

2. The clerk shall set the petition for hearing, andthe petitioner shall give notice of the hearing in the manner required by NRS 155.010 or as the court by order mayrequire.

[181:107:1941; 1931 NCL 9882.181](NRS A 1975,1775; 1999, 2327)

NRS 149.080 Hearingon petition; order directing personal representative to make lease; terms oflease; recordation of copy of order.

1. At the time appointed, the court shall hear thepetition and any objection that may have been presented, and if the court issatisfied that it will be to the advantage of the estate, it shall enter anorder directing the personal representative to make the lease.

2. The order must set forth the minimum rental orroyalty and the period of the lease, which must be for such time as the courtmay authorize, except as otherwise provided in subsection 5 with respect to alease for the purpose of production of minerals, oil, gas or other hydrocarbonsubstances or natural steam.

3. The order may authorize other terms and conditions,including, with respect to a lease for the purpose of production of minerals,oil, gas or other hydrocarbon substances or natural steam, a provision for thepayment of rental and royalty to a depositary, and for the appointment of acommon agent to represent the interest of all the lessors, and, if the lease isfor the purpose of production of oil, gas or other hydrocarbon substances ornatural steam, including a provision for the payment of a compensatory royaltyin lieu of rental and in lieu of drilling and producing operations on theproperty covered by the lease, and including a provision empowering the lesseeto enter into any agreement with lessees, operators or owners of other propertyfor the purpose of bringing about the cooperative development and operation ofall or parts of the field of which the leased property is a part, or for thedevelopment and operation of all or parts of the field as a unit.

4. If the lease covers additional property owned byother persons or an undivided interest of the decedent, or other interest ofthe decedent less than the entire ownership in the property, it may provide fordivision of rental and royalty in the proportion that the property or interestof each owner bears to the total area of the property or total interestscovered by the lease.

5. A lease for the purpose of production of minerals,oil, gas or other hydrocarbon substances or natural steam may be for a fixedperiod, and so long thereafter as minerals, oil, gas or other hydrocarbonsubstances or natural steam are produced in paying quantities from the propertyleased or mining or drilling operations are conducted thereon, and, if thelease provides for the payment of a compensatory royalty, so long as thecompensatory royalty is paid, and, if the property covered by the lease isincluded in an agreement with lessees, operators or owners of other propertyfor cooperative development or unit operation of a larger area including theleased property, so long as oil, gas or other hydrocarbon substances or naturalsteam are produced in paying quantities from any of the property included inany such agreement or drilling operations are conducted thereon.

6. A certified copy of the order must be recorded inthe office of the county recorder of every county in which the leased property,or any portion thereof, is located.

[182:107:1941; A 1951, 223](NRS A 1961, 65; 1965,125; 1999, 2327)

NRS 149.090 Executionof lease; effect of omission, error or irregularity in proceedings.

1. The personal representative shall execute,acknowledge and deliver the lease as directed, setting forth therein that it ismade by authority of the order, giving the date of the order.

2. A lease so made is effectual to lease the propertydescribed, at the rent, for the term and upon the conditions thereinprescribed.

3. Jurisdiction of the court to administer the estateof the decedent is effectual to vest the court with jurisdiction to enter theorder for the lease, and that jurisdiction conclusively inures to the benefitof the lessee, his heirs, successors and assigns.

4. No omission, error or irregularity in theproceedings impairs or invalidates them or the lease made in pursuance thereof.

[183:107:1941; 1931 NCL 9882.183](NRS A 1999, 2328)

NRS 149.100 Leasewithout court order. A personal representativemay lease property without an order of court if the tenancy is from month tomonth, or for a term not to exceed 1 year.

[184:107:1941; 1931 NCL 9882.184](NRS A 1975,1775; 1999, 2329)