Partition Action Complaint - Arkansas

COMPLAINT (PETITION) FOR PARTITION OF REAL PROPERTY — ARKANSAS

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 (Ark. Code § 18-60-401)
8. Count Two — Accounting and Adjustment of Equities
9. Heirs Property Allegations (§ 18-60-1001 et seq.)
10. Manner of Partition
11. Prayer for Relief
12. Verification
13. Arkansas Practice Notes
14. Certificate of Service
15. Sources and References

1. CAPTION

IN THE CIRCUIT COURT OF [________________________________] COUNTY, ARKANSAS

[________________] DIVISION

CASE NO. [________________________________]

COMPLAINT (PETITION) FOR PARTITION OF REAL PROPERTY

2. INTRODUCTION

Plaintiff [PLAINTIFF NAME] ("Plaintiff"), a cotenant of the real property described below, petitions this Court pursuant to Ark. Code § 18-60-401 et seq. (and, where applicable, the Uniform Partition of Heirs Property Act, Ark. Code § 18-60-1001 et seq.) for partition of the real property commonly known as [PROPERTY ADDRESS], located in [COUNTY] County, Arkansas (the "Property"), and for an accounting and adjustment of equities among the cotenants. Plaintiff alleges:

3. PARTIES

3.1. Plaintiff [PLAINTIFF NAME] is a resident of [COUNTY / STATE] and 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, 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. All persons interested in the Property who have not united in this Petition are made Defendants and shall be summoned to appear, as required by Ark. Code § 18-60-401(b)(2).

3.5. The interests of all cotenants and lienholders, as presently known, are as follows (Ark. Code § 18-60-401(b)(1)(B)):

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction pursuant to Ark. Code § 18-60-401, which authorizes any person having an interest in land held in joint tenancy or in common, and desiring a division, to file a written petition in the circuit court.

4.2. Venue is proper in this Court because the Property is real property situated in [COUNTY] County, Arkansas.

5. THE SUBJECT PROPERTY

5.1. The Property is real property located at [STREET ADDRESS], [CITY], [COUNTY] County, Arkansas [ZIP], identified by Parcel No. [____________________].

5.2. The Property is legally described as (Ark. Code § 18-60-401(b)(1)(A)):

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

5.3. The Property consists of [describe: single-family residence / vacant land / ____ acres of farmland or timber / 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 with the [COUNTY] County Circuit Clerk and Recorder as Instrument No. [____________________]; ☐ inheritance / intestate succession from [DECEDENT NAME], who died on [__/__/____]; ☐ other: [________________].

6.3. The Property is not a homestead occupied by a divorced co-owner within the exception of Ark. Code § 18-60-401(a), and no agreement among the cotenants prohibits or restricts the right to partition.

6.4. Plaintiff ☐ is not a "stranger to the title" within Ark. Code § 18-60-427; ☐ if Plaintiff acquired an undivided interest in a parcel of at least ten (10) acres after July 1, 2019, more than three (3) years have elapsed since the purchase, or Plaintiff (alone or in combination) owns fifty percent (50%) or more of the land.

6.5. As a person having an interest in and desiring a division of the Property, Plaintiff is entitled to partition under Ark. Code § 18-60-401.

7. COUNT ONE — PARTITION (Ark. Code § 18-60-401)

7.1. Plaintiff incorporates paragraphs 1 through 6.5 as if fully set forth herein.

7.2. Plaintiff and Defendants own the Property as cotenants. Plaintiff desires a division of the Property and is entitled to partition under Ark. Code § 18-60-401.

7.3. Plaintiff requests that the Court order partition of the Property in kind among the cotenants according to their respective interests and appoint commissioners to make such division pursuant to Ark. Code § 18-60-407.

7.4. If it appears that partition cannot be made without great prejudice to the owners, Plaintiff requests that the Property be sold and the proceeds divided among the cotenants according to their respective interests pursuant to Ark. Code §§ 18-60-409 and 18-60-420.

8. COUNT TWO — ACCOUNTING AND ADJUSTMENT OF EQUITIES

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

8.2. In connection with the partition, Plaintiff seeks an accounting and adjustment of equities among the cotenants, as Arkansas law authorizes contribution and credit among cotenants for amounts paid for the preservation and benefit 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:

• ☐ Real-property (ad valorem) 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 (§ 18-60-1001 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 Ark. Code § 18-60-1002 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 / 20% or more of the interests are held by one cotenant who acquired title from a relative].

9.3. If the Court determines, after notice and hearing or otherwise, that the Property is heirs property, Plaintiff requests that the Court proceed under Ark. Code § 18-60-1001 et seq. (unless all cotenants agree otherwise in a record), including:

• (a) Determining the fair market value of the Property by appraisal by a registered/disinterested appraiser, unless the cotenants unanimously agree to value or the Court finds appraisal cost-prohibitive (Ark. Code § 18-60-1006);
• (b) Affording cotenants the right to buy out the interest(s) of any cotenant requesting partition by sale, at the value determined, within forty-five (45) days after notice (Ark. Code § 18-60-1007);
• (c) Ordering partition in kind unless the Court finds it would result in great prejudice to the cotenants as a group, considering the statutory factors (current use, ancestral/sentimental value, contributions to taxes and upkeep, etc.) (Ark. Code §§ 18-60-1008, 18-60-1009); and
• (d) If a sale is ordered, conducting it by open-market sale, sealed bids, or auction as provided in Ark. Code § 18-60-1010, with the open-market sale preferred unless the Court finds another method more advantageous.

9.4. If Plaintiff seeks service by publication and the Property may be heirs property, Plaintiff will post notice on the Property as required by Ark. Code § 18-60-1004.

10. MANNER OF PARTITION

10.1. Plaintiff alleges that the Property ☐ CAN be partitioned in kind among the cotenants according to their respective interests; OR ☐ CANNOT be partitioned without great prejudice to the owners 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 Ark. Code §§ 18-60-409 and 18-60-420.

10.2. Upon any sale, Plaintiff requests that the net proceeds be distributed among the parties according to their respective interests, after payment of liens and the costs of the action.

11. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court:

A. ☐ Determine the respective interests of all parties in the Property;

B. ☐ Order the Property partitioned in kind among the cotenants according to their interests and appoint commissioners to make such division (Ark. Code § 18-60-407);

C. ☐ If partition cannot be made without great prejudice to the owners, order the Property sold and the proceeds distributed among the parties according to their respective interests (Ark. Code §§ 18-60-409, 18-60-420);

D. ☐ Determine whether the Property is heirs property and, if so, apply the appraisal, buyout, and sale provisions of the Uniform Partition of Heirs Property Act (Ark. Code § 18-60-1001 et seq.);

E. ☐ Order an accounting and adjustment of equities among the cotenants for taxes, mortgage payments, insurance, repairs, and improvements, offset by rents and profits received and any ouster, and award owelty as necessary;

F. ☐ Apportion the costs of this action, including a reasonable attorney's fee, among the parties in proportion to their interests as authorized by Ark. Code § 18-60-426; and

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

DATED: [__/__/____]

Respectfully submitted,

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

12. VERIFICATION

STATE OF ARKANSAS )
COUNTY OF [________________] )

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 (Petition) 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
My commission expires: [__/__/____]

13. ARKANSAS PRACTICE NOTES

Forum. Partition is filed in the circuit court of the county where the land lies. Chancery jurisdiction historically governed partition; chancery and law courts are now merged into the circuit courts. (Ark. Code § 18-60-401.)

Petition contents. The petition must contain the description of the property, the names of each party having an interest and the nature and amount of that interest, and a prayer for division and for a sale if partition cannot be made without great prejudice. (Ark. Code § 18-60-401(b).)

Heirs property. For actions governed by the 2015 enactment (effective January 1, 2016), the court must determine whether the property is heirs property under Ark. Code § 18-60-1002; if so, the UPHPA (§ 18-60-1001 et seq.) applies and controls any conflict, unless all cotenants agree otherwise in a record. (Ark. Code § 18-60-401(c).)

Stranger-to-title restriction. Under Ark. Code § 18-60-427, a "stranger to the title" who purchases an undivided interest in a parcel of at least ten (10) acres after July 1, 2019 generally has no cause of action to partition until three (3) years after purchase; cotenants owning 50% or more may partition at any time. Confirm applicability before filing.

Accounting. Arkansas allows contribution and credit among cotenants for taxes, improvements, and necessary expenses, with offsets for rents and ouster, as part of the equitable distribution.

Costs and fees. Ark. Code § 18-60-426 authorizes apportionment of the costs of partition, including a reasonable attorney's fee, among the parties in proportion to their interests. Confirm current text.

14. CERTIFICATE OF SERVICE

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

[________________________________]
[ATTORNEY NAME]

15. SOURCES AND REFERENCES

• Ark. Code §§ 18-60-401 to 18-60-426 (Partition and Sale of Land — Subchapter 4)
• Ark. Code § 18-60-401 (Petition; determination of heirs property; applicability)
• Ark. Code § 18-60-427 (Restriction on right to partition — stranger to title)
• Ark. Code §§ 18-60-1001 to 18-60-1014 (Uniform Partition of Heirs Property Act — Subchapter 10; Act 2015 No. 107)
• Ark. Code § 18-60-1002 (Definitions; heirs property)
• Ark. Code § 18-60-1007 (Cotenant buyout — 45-day notice)
• Ark. Code § 18-60-1010 (Open-market sale; sealed bids; auction)
• Uniform Law Commission, Partition of Heirs Property Act

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