Partition Action Complaint - Alabama

COMPLAINT FOR PARTITION OF REAL PROPERTY — ALABAMA

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Parties
4. Jurisdiction and Venue
5. The Subject Property
6. Cotenancy and Title
7. Count One — Partition (Ala. Code § 35-6-20)
8. Count Two — Accounting and Adjustment of Equities (§ 35-6-57)
9. Heirs Property Allegations (§ 35-6A-1 et seq.)
10. Manner of Partition
11. Prayer for Relief
12. Verification
13. Alabama Practice Notes
14. Certificate of Service
15. Sources and References

1. CAPTION

IN THE CIRCUIT COURT OF [________________________________] COUNTY, ALABAMA

CIVIL ACTION 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 Ala. Code § 35-6-20 et seq. (and, where applicable, the Alabama Uniform Partition of Heirs Property Act, § 35-6A-1 et seq.) for partition of the real property commonly known as [PROPERTY ADDRESS], located in [COUNTY] County, Alabama (the "Property"), and for an accounting and adjustment of equities among the cotenants. Plaintiff alleges as follows:

3. PARTIES

3.1. Plaintiff [PLAINTIFF NAME] is over the age of 19 years and is a resident of [COUNTY / STATE]. Plaintiff owns an undivided [____] interest (e.g., 1/3) in the Property as a tenant in common.

3.2. Defendant [DEFENDANT 1] is, on information and belief, over the age of 19 years and a resident of [COUNTY / 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. Fictitious Defendants A through E are those persons or entities, whether known or unknown, who claim or may claim any right, title, lien, or interest in the Property, whose true names are presently unknown to Plaintiff and will be substituted by amendment when ascertained, as authorized by Rule 9(h), Ala. R. Civ. P.

3.5. 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 Ala. Code § 35-6-20, which vests the circuit court with jurisdiction to divide or partition, or sell for division, any property held by joint owners or tenants in common.

4.2. Venue is proper in this Court because the Property is real property situated in [COUNTY] County, Alabama. (Ala. Code § 6-3-2; § 35-6-20.)

5. THE SUBJECT PROPERTY

5.1. The Property is real property located at [STREET ADDRESS], [CITY], [COUNTY] County, Alabama [ZIP], identified by Parcel ID [____________________].

5.2. The Property is legally described as:

[INSERT FULL LEGAL DESCRIPTION FROM DEED / PROBATE RECORDS — METES AND BOUNDS OR GOVERNMENT SURVEY DESCRIPTION]

5.3. The Property consists of [describe: single-family residence / vacant land / ____ acres of timber or farmland / multi-unit building] 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 3.5 above.

6.2. Title was acquired by ☐ deed dated [__/__/____], recorded in the Office of the Judge of Probate of [COUNTY] County in Deed Book [____], Page [____]; ☐ inheritance / intestate succession from [DECEDENT NAME], who died on [__/__/____] [testate / intestate]; ☐ other: [________________].

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

6.4. As a cotenant, Plaintiff is entitled to partition or to a sale for division as a matter of right under Ala. Code § 35-6-20.

7. COUNT ONE — PARTITION (Ala. Code § 35-6-20)

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

7.2. Plaintiff and Defendants own the Property as cotenants. Plaintiff no longer wishes to hold the Property in common with the other cotenants.

7.3. Pursuant to Ala. Code § 35-6-20, Plaintiff is entitled to a division and partition of the Property in kind, or, if the Property cannot be equitably divided or partitioned without prejudice to the owners, to a sale of the Property and a division of the proceeds among the cotenants according to their respective interests.

7.4. Plaintiff requests that the Court appoint commissioners pursuant to Ala. Code § 35-6-23 to make partition of the Property in kind, or, if such division cannot be made, to report that fact to the Court so that the Property may be sold for division.

8. COUNT TWO — ACCOUNTING AND ADJUSTMENT OF EQUITIES (§ 35-6-57)

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

8.2. Pursuant to Ala. Code § 35-6-57, in any partition or sale-for-division action the Court may adjust the equities between and determine all claims of the several cotenants, including charges and credits for amounts expended in the preservation, improvement, or protection of the common property.

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:

• ☐ Ad valorem property taxes: $[____________];
• ☐ Mortgage 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. Plaintiff requests that the Court charge and credit each cotenant accordingly and, where partition in kind results in an unequal division, award owelty to equalize the shares.

9. HEIRS PROPERTY ALLEGATIONS (§ 35-6A-1 et seq.)

9.1. Plaintiff incorporates the foregoing paragraphs as if fully set forth herein.

9.2. The Property ☐ is ☐ is not "heirs property" within the meaning of Ala. Code § 35-6A-2 because: there is no agreement in a record binding all cotenants governing partition; one or more cotenants acquired title from a relative ([DECEDENT / RELATIVE NAME]); and [20% or more of the interests are held by relatives / 20% or more of the cotenants are relatives / ________].

9.3. In each petitioner's initial pleading, Ala. Code § 35-6A-7(a) requires the petitioner to state whether the petitioner requests partition by sale. Plaintiff states: Plaintiff ☐ requests partition by sale ☐ does not request partition by sale and seeks partition in kind.

9.4. If the Court determines the Property is heirs property, Plaintiff requests that the Court proceed under § 35-6A-1 et seq., including:

• (a) Determining the fair market value of the Property by appraisal by a disinterested licensed appraiser, unless the cotenants agree to value or the Court finds appraisal cost-prohibitive (§ 35-6A-6);
• (b) Affording cotenants the right to purchase (buy out) the interest(s) of any cotenant requesting partition by sale, at the value determined, within the statutory period (§ 35-6A-7);
• (c) Ordering partition in kind unless the Court finds it would result in great prejudice to the cotenants as a group, considering the factors in § 35-6A-9 (including duration of ownership, sentimental/ancestral value, current lawful use, and contributions to taxes, insurance, and upkeep) (§§ 35-6A-8, 35-6A-9); and
• (d) If a sale is ordered, conducting it by open-market sale, sealed bids, or auction as provided in § 35-6A-10, with the open-market sale preferred unless the Court finds another method more advantageous.

10. MANNER OF PARTITION

10.1. Plaintiff alleges that the Property ☐ CAN be equitably partitioned in kind among the cotenants according to their respective interests; OR ☐ CANNOT be equitably divided or partitioned without great prejudice to the owners because [the Property is a single residence on a single lot / division would materially impair value / ________], such that a sale for division is necessary and would better promote the interests of the cotenants.

10.2. Upon any sale, Plaintiff requests that the net proceeds, after payment of the costs of the action (including a reasonable attorney's fee for services for the common benefit) and adjustment of equities, be distributed among the cotenants in proportion to their respective interests.

11. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court:

A. ☐ Take jurisdiction of this cause and of the Property and all parties claiming an interest therein;

B. ☐ Determine the respective interests of the cotenants in the Property;

C. ☐ Order the Property partitioned in kind among the cotenants according to their interests, appointing commissioners as provided by Ala. Code § 35-6-23 to make such division;

D. ☐ If the Property cannot be equitably partitioned in kind without great prejudice to the owners, order the Property sold for division and the proceeds distributed among the cotenants according to their respective interests;

E. ☐ Determine and apply the appraisal, buyout, and sale provisions of the Alabama Uniform Partition of Heirs Property Act (§ 35-6A-1 et seq.) if the Property is heirs property;

F. ☐ Adjust the equities among the cotenants under Ala. Code § 35-6-57, charging and crediting each cotenant for taxes, mortgage payments, insurance, repairs, improvements, rents received, and ouster, and awarding owelty as necessary;

G. ☐ Award the costs of this action, including a reasonable attorney's fee for services rendered for the common benefit, to be taxed against the Property or apportioned among the cotenants; and

H. ☐ Grant such other and further relief as the Court deems just and proper.

DATED: [__/__/____]

Respectfully submitted,

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

12. VERIFICATION

STATE OF ALABAMA )
COUNTY OF [________________] )

Before me, the undersigned authority, personally appeared [PLAINTIFF NAME], who, being first duly sworn, deposes and says that he/she is the Plaintiff in the foregoing Complaint, that he/she has read the same, and that the facts stated therein are true and correct to the best of his/her knowledge, information, and belief.

[________________________________]
[PLAINTIFF NAME]

Sworn to and subscribed before me this [____] day of [____________], [______].

[________________________________]
Notary Public
My commission expires: [__/__/____]

13. ALABAMA PRACTICE NOTES

Forum. Partition and sale-for-division actions are filed in the circuit court of the county where the land lies. (Ala. Code § 35-6-20.) Equity jurisdiction is exercised by the circuit court.

Preference for partition in kind. Alabama courts prefer partition in kind; a sale for division is ordered where the land cannot be equitably divided without prejudice or a sale will better promote the interests of the cotenants. A trial court's finding that land cannot be equitably partitioned carries a presumption of correctness. (Black v. Stimpson, 602 So. 2d 368 (Ala. 1992).)

Heirs Property Act. For actions filed on or after January 1, 2015, the Alabama Uniform Partition of Heirs Property Act (§ 35-6A-1 et seq.) governs heirs property and controls to the extent of any conflict with Chapter 6. (Stephens v. Claridy, 312 So. 3d 1230 (Ala. 2021).) Note that Alabama courts have addressed constitutional challenges to certain buyout-eligibility limits; confirm current case law before relying on which parties may bid.

Right of cotenant to purchase. Ala. Code § 35-6-100 et seq. provides a procedure by which a cotenant may purchase the interests of others before a sale for division; this operates alongside the § 35-6A-7 buyout for heirs property.

Adjustment of equities. Ala. Code § 35-6-57 authorizes the court to adjust all equities among cotenants, including contribution for taxes, improvements, and insurance, and offsets for rents and ouster.

Attorney's fees. A reasonable attorney's fee for services rendered for the common benefit of all cotenants may be taxed as part of the costs and paid from the common fund. Confirm the current fee statute/rule and case law.

14. CERTIFICATE OF SERVICE

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

[________________________________]
[ATTORNEY NAME]

15. SOURCES AND REFERENCES

• Ala. Code §§ 35-6-20 to 35-6-73 (Partition — Chapter 6)
• Ala. Code § 35-6-57 (Adjustment of equities among cotenants)
• Ala. Code §§ 35-6-100 to 35-6-104 (Sale; right of cotenant to purchase)
• Ala. Code §§ 35-6A-1 to 35-6A-14 (Alabama Uniform Partition of Heirs Property Act)
• Stephens v. Claridy, 312 So. 3d 1230 (Ala. 2021) (Heirs Property Act; partition by sale)
• Black v. Stimpson, 602 So. 2d 368 (Ala. 1992) (presumption of correctness; partition in kind)
• Ala. R. Civ. P. 9(h) (fictitious-party practice)

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