Partition Action Complaint - Alaska

COMPLAINT FOR PARTITION OF REAL PROPERTY — ALASKA

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Parties
4. Jurisdiction and Venue
5. The Subject Property
6. Cotenancy and Title
7. First Cause of Action — Partition (AS 09.45.260)
8. Second Cause of Action — Accounting and Contribution
9. Manner of Partition
10. Prayer for Relief
11. Verification
12. Alaska Practice Notes
13. Certificate of Service
14. Sources and References

1. CAPTION

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

[________________] JUDICIAL DISTRICT AT [________________]

CASE NO. [________________________________]

COMPLAINT FOR PARTITION OF REAL PROPERTY

2. INTRODUCTION

Plaintiff [PLAINTIFF NAME] ("Plaintiff"), a cotenant of the real property described below, brings this action pursuant to Alaska Stat. § 09.45.260 et seq. for partition of the real property commonly known as [PROPERTY ADDRESS], located in [CITY / BOROUGH], Alaska (the "Property"), or, if partition in kind cannot be had without great prejudice, for a sale of the Property and division of the proceeds, together with an accounting and contribution among the cotenants. Plaintiff alleges as follows:

3. PARTIES

3.1. Plaintiff [PLAINTIFF NAME] is, and at all relevant times was, a resident of [CITY / BOROUGH / STATE], and owns an undivided [____] interest (e.g., 1/2) in the Property as a tenant in common.

3.2. Defendant [DEFENDANT 1] is, on information and belief, a resident of [CITY / BOROUGH / STATE], and owns an undivided [____] interest in the Property as a tenant in common.

3.3. Defendant [DEFENDANT 2] is, on information and belief, [an individual / a corporation / a trust / a lienholder] who holds or claims an interest in the Property as [cotenant / mortgagee / judgment lienholder / ________].

3.4. The interests of all cotenants and lienholders, as presently known, are as follows:

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction over this action pursuant to Alaska Stat. § 09.45.260, which authorizes an action for partition of real property held in tenancy in common, or for a sale if partition cannot be had without great prejudice.

4.2. Venue is proper in this judicial district because the Property is real property situated within this district. (Alaska R. Civ. P. 3.)

5. THE SUBJECT PROPERTY

5.1. The Property is real property located at [STREET ADDRESS], [CITY], [BOROUGH], Alaska [ZIP], situated in the [____________________] Recording District.

5.2. The Property is legally described as:

[INSERT FULL LEGAL DESCRIPTION FROM DEED / TITLE REPORT — METES AND BOUNDS, LOT-AND-BLOCK, OR U.S. SURVEY / ALEUTIAN-MERIDIAN DESCRIPTION]

5.3. The Property consists of [describe: single-family residence / vacant land / ____ acres / cabin and improvements] and is [occupied by ________ / vacant].

6. COTENANCY AND TITLE

6.1. Plaintiff and Defendants [name cotenants] own the Property as ☐ tenants in common ☐ joint tenants, in the undivided fractional shares set forth in Section 3.4 above.

6.2. Title was acquired by ☐ deed dated [__/__/____], recorded in the [____________________] Recording District as Serial No. [____________________]; ☐ inheritance / intestate succession from [DECEDENT NAME], who died on [__/__/____]; ☐ other: [________________].

6.3. No agreement among the cotenants prohibits or restricts the right to partition the Property.

6.4. As a person owning an estate of inheritance in the Property as a tenant in common, Plaintiff is entitled to bring this action for partition or sale under Alaska Stat. § 09.45.260.

7. FIRST CAUSE OF ACTION — PARTITION (AS 09.45.260)

7.1. Plaintiff realleges and incorporates paragraphs 1 through 6.4 as if fully set forth herein.

7.2. Several persons own the Property as tenants in common, one or more of whom (including Plaintiff) hold an estate of inheritance therein. Plaintiff is therefore a person authorized to bring an action for partition under Alaska Stat. § 09.45.260.

7.3. Plaintiff seeks partition of the Property according to the respective rights of the interested persons, and a sale of the Property or a part of it if it appears that partition cannot be had without great prejudice to the parties.

7.4. Plaintiff requests that the Court determine the rights and interests of the parties pursuant to Alaska Stat. § 09.45.280 and enter an order for partition or sale pursuant to Alaska Stat. § 09.45.290, appointing referees to make partition or conduct the sale and to report to the Court under Alaska Stat. §§ 09.45.300 and 09.45.330.

8. SECOND CAUSE OF ACTION — ACCOUNTING AND CONTRIBUTION

8.1. Plaintiff realleges and incorporates the foregoing paragraphs as if fully set forth herein.

8.2. In connection with the partition, and as part of the equitable determination of the parties' rights, Plaintiff seeks an accounting and contribution among the cotenants.

8.3. Plaintiff has paid, in excess of Plaintiff's proportionate share, the following amounts for the benefit and preservation of the Property, for which Plaintiff seeks contribution and credit:

• ☐ Real-property taxes and assessments: $[____________];
• ☐ Mortgage / deed-of-trust principal and interest payments: $[____________];
• ☐ Insurance premiums: $[____________];
• ☐ Necessary repairs and maintenance: $[____________];
• ☐ Permanent improvements that enhanced the value of the Property: $[____________];
• ☐ Other: [________________________________]: $[____________].

8.4. Defendant(s) [NAME] have had exclusive use and possession of the Property and/or have received rents and profits in the amount of $[____________], for which an accounting and offset is sought, including the reasonable rental value attributable to any ouster of Plaintiff.

8.5. Where partition in kind results in an unequal division, Plaintiff requests that the Court award compensation (owelty) under Alaska Stat. § 09.45.590 to equalize the shares of the cotenants.

9. MANNER OF PARTITION

9.1. Plaintiff alleges that the Property ☐ CAN be partitioned in kind among the cotenants according to their respective interests without great prejudice; OR ☐ CANNOT be partitioned in kind without great prejudice to the parties because [the Property is so situated that partition cannot be made without great prejudice / the Property is a single residence on a single lot / division would materially impair value / ________], such that a sale and division of the net proceeds is necessary under Alaska Stat. §§ 09.45.290 and 09.45.330.

9.2. Upon any sale, Plaintiff requests that the net proceeds be distributed among the parties according to their respective interests as provided by Alaska Stat. § 09.45.400, after payment of liens and the costs of partition.

10. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court:

A. ☐ Determine the respective rights and interests of all parties in the Property pursuant to Alaska Stat. § 09.45.280;

B. ☐ Order the Property partitioned in kind among the cotenants according to their interests, and appoint referees to make such partition and report to the Court (Alaska Stat. §§ 09.45.290-09.45.300);

C. ☐ If the Property is so situated that partition cannot be made without great prejudice to the parties, order the Property sold and the proceeds distributed among the parties according to their respective interests (Alaska Stat. §§ 09.45.290, 09.45.330, 09.45.400);

D. ☐ Order an accounting and contribution among the cotenants for taxes, mortgage payments, insurance, repairs, and improvements, offset by rents and profits received and any ouster, and award owelty under Alaska Stat. § 09.45.590 if the division is unequal;

E. ☐ Apportion the costs of the partition among the parties in proportion to their respective interests pursuant to Alaska Stat. § 09.45.620, including a reasonable attorney's fee as authorized by law or rule; and

F. ☐ Grant such other and further relief as the Court deems just and equitable.

DATED: [__/__/____]

Respectfully submitted,

[________________________________]
[ATTORNEY NAME] (Alaska Bar No. [____________])
[LAW FIRM NAME]
[ADDRESS]
[PHONE / EMAIL]
Attorney for Plaintiff

11. VERIFICATION

STATE OF ALASKA )
[________________] JUDICIAL DISTRICT )

I, [PLAINTIFF NAME], being first duly sworn, depose and state that I am the Plaintiff in the above-entitled action, that I have read the foregoing Complaint for Partition of Real Property, and that the matters stated therein are true and correct to the best of my knowledge, information, and belief.

[________________________________]
[PLAINTIFF NAME]

Subscribed and sworn to before me this [____] day of [____________], [______].

[________________________________]
Notary Public in and for Alaska
My commission expires: [__/__/____]

12. ALASKA PRACTICE NOTES

Forum and statute. Partition actions are governed by Alaska Stat. §§ 09.45.260-09.45.620 and are brought in the superior court for the judicial district where the land lies.

Right to partition. Under AS 09.45.260, a tenant in common holding an estate of inheritance (or a life tenant, as to that estate) may bring an action for partition, "or for a sale of the property or a part of it if it appears that a partition cannot be had without great prejudice to the parties."

Referees. Partition is carried out by court-appointed referees, who make partition in kind or, if directed, conduct the sale and report to the court. (AS 09.45.290-09.45.300, 09.45.330, 09.45.530-09.45.540.)

No Heirs Property Act. Alaska has not enacted the Uniform Partition of Heirs Property Act. There is no separate statutory appraisal, cotenant-buyout, or open-market-sale regime for inherited tenancy-in-common property; equitable principles and the general partition statutes govern.

Accounting and owelty. Equitable contribution and compensation for unequal partition are available; AS 09.45.590 authorizes compensation where the partition is unequal.

Costs. AS 09.45.620 authorizes apportionment of the costs of partition among the parties in proportion to their interests. Attorney's fees are governed by Alaska R. Civ. P. 82 and any applicable equitable / common-fund principles; confirm current law.

13. CERTIFICATE OF SERVICE

I certify that on [__/__/____], a copy of the foregoing COMPLAINT FOR PARTITION OF REAL PROPERTY was served upon the following parties in the manner indicated:

[________________________________]
[ATTORNEY NAME]

14. SOURCES AND REFERENCES

• Alaska Stat. §§ 09.45.260-09.45.620 (Partition — Code of Civil Procedure, Ch. 45, Art. 6)
• Alaska Stat. § 09.45.260 (Right of action for partition or sale)
• Alaska Stat. § 09.45.290 (Order for partition or sale)
• Alaska Stat. § 09.45.400 (Distribution of proceeds of sale)
• Alaska Stat. § 09.45.590 (Compensation for unequal partition)
• Alaska Stat. § 09.45.620 (Apportionment of cost of partition)
• Alaska R. Civ. P. 3 (venue), 82 (attorney's fees)
• Uniform Law Commission, Partition of Heirs Property Act (enactment status — Alaska not adopting, as of last review)

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