Partition Action Complaint - Colorado

COMPLAINT FOR PARTITION OF REAL PROPERTY — COLORADO

TABLE OF CONTENTS

1. Caption
2. Nature of the Action
3. Parties
4. Jurisdiction and Venue
5. The Subject Property
6. Cotenancy and Fractional Interests
7. Source and Nature of Title
8. Entitlement to Partition
9. Manner of Partition — In Kind vs. Sale
10. Accounting and Equitable Adjustments
11. Appointment of Commissioners
12. Prayer for Relief
13. Verification
14. Signature and Service Blocks
15. Certificate of Service
16. Notice of Lis Pendens (C.R.S. § 38-35-110)
17. Colorado Practice Notes
18. Sources and References

1. CAPTION

DISTRICT COURT, [________________________________] COUNTY, COLORADO

Court Address: [________________________________]

CASE NUMBER: [________________________________]

DIVISION: [____] COURTROOM: [____]

VERIFIED COMPLAINT FOR PARTITION OF REAL PROPERTY

Plaintiff [PLAINTIFF NAME], by and through undersigned counsel, for this Verified Complaint for Partition against Defendants, alleges and states as follows:

2. NATURE OF THE ACTION

2.1. This is an action for the division and partition of real property pursuant to C.R.S. §§ 38-28-101 et seq. Plaintiff and one or more Defendants own the Property described herein as cotenants, and Plaintiff seeks partition of the Property, together with an accounting and equitable adjustment of the parties' respective contributions and offsets.

2.2. A partition action is an equitable proceeding governed by statute. The right of a cotenant to partition is a matter of right. See C.R.S. § 38-28-101.

3. PARTIES

3.1. Plaintiff [PLAINTIFF NAME] is an individual residing in [COUNTY] County, Colorado, and is a record owner of an undivided [____] interest in the Property.

3.2. Defendant [DEFENDANT 1 NAME] is, upon information and belief, an individual residing at [ADDRESS], [CITY, STATE, ZIP], and is a record owner of an undivided [____] interest in the Property.

3.3. Defendant [DEFENDANT 2 NAME] is, upon information and belief, a [individual / corporation / limited liability company / trust] with its [residence / principal place of business] at [ADDRESS], and claims or appears to claim an interest in the Property.

3.4. Defendant [LIENHOLDER NAME] is named because it holds, or appears of record to hold, a [mortgage / deed of trust / judgment lien / mechanic's lien] encumbering the Property or an undivided interest therein, recorded at Reception No. [____________________] of the records of the [COUNTY] County Clerk and Recorder. It is joined pursuant to C.R.S. § 38-28-102 so that its interest may be protected and bound by the decree, and transferred to the proceeds of any sale pursuant to C.R.S. § 38-28-110.

3.5. The Defendants designated as "All Unknown Persons Who Claim Any Interest in the Subject Matter of This Action" are persons whose names and interests are unknown to Plaintiff after diligent inquiry and who may claim some right, title, lien, or interest in the Property.

3.6. Pursuant to C.R.S. § 38-28-102, all persons having any interest in the Property — direct, beneficial, contingent, or otherwise — have been made parties to this action.

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction pursuant to Colo. Const. art. VI, § 9, and C.R.S. § 38-28-101, which confers upon the District Court the authority to order the division and partition of real property.

4.2. Venue is proper in this Court pursuant to C.R.C.P. 98(a) because the Property that is the subject of this action is situated wholly or in part within [COUNTY] County, Colorado.

5. THE SUBJECT PROPERTY

5.1. This action concerns the real property commonly known as [STREET ADDRESS], [CITY], [COUNTY] County, Colorado [ZIP], identified by Schedule/Parcel No. [____________________] (the "Property").

5.2. The Property is legally described as:

[INSERT FULL LEGAL DESCRIPTION — e.g., Lot ___, Block ___, [SUBDIVISION NAME], according to the recorded plat thereof, County of [COUNTY], State of Colorado; or full metes-and-bounds description]

5.3. ☐ The Property is improved by a [single-family residence / multi-unit dwelling / vacant land / agricultural land / commercial building] and ☐ [is / is not] capable of physical division without material prejudice to the owners.

6. COTENANCY AND FRACTIONAL INTERESTS

6.1. Plaintiff and Defendants hold title to the Property as [tenants in common / joint tenants]. The respective fractional interests of the cotenants are as follows:

6.2. The fractional interests set forth above total a fee simple absolute in the entire Property. There is no agreement among the cotenants that waives, suspends, or otherwise restricts the right of partition.

7. SOURCE AND NATURE OF TITLE

7.1. The cotenants acquired their respective interests in the Property by [deed / inheritance / intestate succession / decree of distribution / dissolution decree / other], as follows: [describe chain — e.g., by Warranty Deed from [GRANTOR] recorded [__/__/____] at Reception No. [____]; by intestate succession from [DECEDENT] who died on [__/__/____]].

7.2. ☐ The cotenancy arose by inheritance or devise from a common relative, [DECEDENT NAME], and the Property may constitute inherited or "heirs" property.

7.3. Plaintiff is in [actual / constructive] possession of the Property and is not barred from seeking partition.

8. ENTITLEMENT TO PARTITION

8.1. Plaintiff realleges and incorporates paragraphs 1 through 7.3 above.

8.2. As a cotenant holding an undivided interest in the Property, Plaintiff is entitled, as a matter of right, to maintain this action for partition pursuant to C.R.S. § 38-28-101.

8.3. The Property is held by the parties in cotenancy, and no division of the Property has been made among them. The parties cannot agree upon a voluntary division or disposition of the Property.

8.4. Plaintiff is entitled to a decree of this Court ascertaining and declaring the respective rights and interests of the parties in the Property pursuant to C.R.S. § 38-28-103, and ordering partition thereof.

9. MANNER OF PARTITION — IN KIND vs. SALE

9.1. Plaintiff realleges and incorporates paragraphs 1 through 8.4 above.

9.2. Partition in kind (preferred). ☐ The Property can be physically divided among the cotenants according to their respective interests without manifest prejudice to the owners. Plaintiff requests that the Court order partition in kind pursuant to C.R.S. § 38-28-104 and appoint commissioners to make the division, with owelty awarded as necessary to equalize the shares.

9.3. Partition by sale (alternative). ☐ The Property is so situated that partition in kind cannot be made without manifest prejudice to the owners, in that [the Property is a single-family residence / a single indivisible parcel / would be materially reduced in value if divided / [other reason]]. Plaintiff therefore requests that, pursuant to C.R.S. § 38-28-105, the Court order the Property sold and the net proceeds distributed among the parties according to their respective interests as adjusted by the accounting set forth below, pursuant to C.R.S. § 38-28-107.

10. ACCOUNTING AND EQUITABLE ADJUSTMENTS

10.1. Plaintiff realleges and incorporates paragraphs 1 through 9.3 above.

10.2. In connection with the partition, the Court should take an accounting and make equitable adjustments among the cotenants. Plaintiff has paid more than Plaintiff's proportionate share of the carrying costs of the Property, and is entitled to contribution and credit for the following:

• ☐ Real-property taxes and special assessments paid: $[__________];
• ☐ Mortgage / deed-of-trust principal and interest payments: $[__________];
• ☐ Hazard and liability insurance premiums: $[__________];
• ☐ Necessary repairs and maintenance: $[__________];
• ☐ Capital improvements that enhanced the value of the Property: $[__________];
• ☐ Other necessary expenditures: [________________________________] — $[__________].

10.3. Plaintiff is entitled to an offset or charge against the share of any cotenant who has been in sole possession of the Property and has received the rents, profits, or rental value thereof to the exclusion of Plaintiff (ouster), in the amount of $[__________] or such amount as the evidence may establish.

10.4. To the extent partition in kind is ordered and the parcels allotted are unequal in value, Plaintiff requests an award of owelty to equalize the division.

10.5. All such adjustments should be charged against or credited to the respective shares of the parties, whether in the allotment of parcels or in the distribution of sale proceeds, pursuant to the Court's equitable powers and C.R.S. § 38-28-107.

11. APPOINTMENT OF COMMISSIONERS

11.1. Plaintiff realleges and incorporates paragraphs 1 through 10.5 above.

11.2. Pursuant to C.R.S. § 38-28-104, Plaintiff requests that the Court appoint [one (1) / three (3)] disinterested commissioner(s) to make partition of the Property in kind, or, if the Court orders a sale, to conduct or oversee the sale of the Property and report the proceeds to the Court for distribution.

11.3. The commissioner(s) should be authorized to employ a licensed surveyor, appraiser, or real-estate broker as necessary to carry out the partition or sale, with their reasonable fees taxed as costs pursuant to C.R.S. § 38-28-108.

12. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment as follows:

A. ☐ Ascertaining and declaring the respective rights, shares, and interests of the parties in and to the Property pursuant to C.R.S. § 38-28-103;

B. ☐ Ordering partition of the Property in kind among the parties according to their respective interests, with owelty as necessary to equalize the shares;

C. ☐ In the alternative, if partition in kind cannot be made without manifest prejudice, ordering the Property sold pursuant to C.R.S. § 38-28-105 and the net proceeds distributed among the parties according to their respective interests as adjusted by the accounting;

D. ☐ Appointing [one (1) / three (3)] commissioner(s) to make the partition or to conduct the sale and report to the Court pursuant to C.R.S. §§ 38-28-104 through 38-28-106;

E. ☐ Taking an accounting among the cotenants and awarding Plaintiff contribution, credit, and offset for taxes, mortgage payments, insurance, repairs, improvements, and the rental value of any property held in ouster, charged against the respective shares;

F. ☐ Directing that all liens and encumbrances attach to the proceeds of any sale in their respective priorities pursuant to C.R.S. § 38-28-110;

G. ☐ Apportioning the costs and expenses of this action, including commissioners' fees, survey and appraisal costs, and reasonable attorney fees, among the parties in proportion to their interests pursuant to C.R.S. § 38-28-108;

H. ☐ Awarding Plaintiff costs of suit; and

I. ☐ Granting such other and further relief as the Court deems just and proper.

13. VERIFICATION

STATE OF COLORADO

COUNTY OF [________________]

I, [PLAINTIFF NAME], being first duly sworn upon oath, depose and state that I am the Plaintiff in the foregoing action; that I have read the foregoing Verified Complaint for Partition of Real Property and know the contents thereof; and that the same is true of my own knowledge, except as to those matters stated upon information and belief, and as to those matters I believe them to be true.

[________________________________]
[PLAINTIFF NAME]

Subscribed and sworn to before me this [____] day of [________________], 20[____], by [PLAINTIFF NAME].

[________________________________]
Notary Public, State of Colorado
My Commission Expires: [__/__/____]

14. SIGNATURE AND SERVICE BLOCKS

Dated: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Colo. Reg. No. [__________]

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [________________]

Email: [________________]

Attorney for Plaintiff

15. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing VERIFIED COMPLAINT FOR PARTITION OF REAL PROPERTY was served upon the following parties via ☐ the Colorado Courts E-Filing system; ☐ U.S. Mail, postage prepaid; ☐ personal service; ☐ service by publication as ordered by the Court, addressed as follows:

[NAME / ADDRESS OF EACH PARTY OR COUNSEL SERVED]

[________________________________]
[ATTORNEY NAME / SIGNING PARTY]

16. NOTICE OF LIS PENDENS (C.R.S. § 38-35-110)

DISTRICT COURT, [________________________________] COUNTY, COLORADO

CASE NUMBER: [________________________________]

[PLAINTIFF NAME], Plaintiff, v. [DEFENDANT NAME], et al., Defendants.

NOTICE OF LIS PENDENS

NOTICE IS HEREBY GIVEN that the above-captioned action affecting the title to and right of possession of real property has been commenced and is pending in the District Court of [COUNTY] County, Colorado. The real property affected is located in [COUNTY] County, Colorado, and is described as follows:

[INSERT FULL LEGAL DESCRIPTION]

Commonly known as: [STREET ADDRESS], [CITY], Colorado [ZIP]; Schedule/Parcel No. [____________________].

The relief sought includes partition of the foregoing real property and an accounting among the cotenants.

Dated: [__/__/____]

[________________________________]
[ATTORNEY NAME], Colo. Reg. No. [__________]
Attorney for Plaintiff

RECORD WITH: The Clerk and Recorder of [COUNTY] County, Colorado.

17. COLORADO PRACTICE NOTES

• Governing statute. Partition of real and personal property is governed by C.R.S. §§ 38-28-101 to 38-28-110. The remedy is statutory and equitable; the court's function is to sever the unity of possession, not to create new interests (Keith v. El-Kareh, 729 P.2d 377 (Colo. App. 1986)).
• Right of partition. A cotenant may obtain partition as a matter of right unless the right has been contracted away (Twin Lakes Reservoir & Canal Co. v. Bond, 157 Colo. 10 (1965)). Confirm there is no co-ownership or operating agreement waiving partition.
• Necessary parties. C.R.S. § 38-28-102 requires that all persons holding any interest — including lienholders, mortgagees, deed-of-trust beneficiaries, life tenants, and remaindermen — be joined. A title commitment / litigation guarantee should be obtained before filing.
• In kind vs. sale. Partition in kind is preferred; a sale is ordered only where physical division cannot be made without manifest prejudice (C.R.S. §§ 38-28-104, 38-28-105). Most residential single-family properties are sold rather than divided.
• Accounting and offsets. Colorado partition allows offsets for contributions toward taxes, mortgage, insurance, repairs, and improvements, and charges for rents received or the rental value where a cotenant has ousted another. Plead related claims (e.g., unjust enrichment, ouster) as separate counts if independent recovery is sought.
• UPHPA status. Colorado has not adopted the Uniform Partition of Heirs' Property Act. There is no statutory appraisal, cotenant-buyout, or open-market-sale regime for inherited tenancies; the general partition statute and the court's equity powers govern.
• Lis pendens. Record a notice of lis pendens under C.R.S. § 38-35-110 in the county where the Property lies to give notice to prospective purchasers and encumbrancers.
• Marital property. Partition cannot be used to circumvent or override the terms of a dissolution decree (Wilson v. Prentiss, 140 P.3d 288 (Colo. App. 2006); Harrod v. Harrod, 34 Colo. App. 172 (1974)).

18. SOURCES AND REFERENCES

• C.R.S. §§ 38-28-101 to 38-28-110 (Partition) — https://leg.colorado.gov/
• C.R.S. § 38-35-110 (Lis pendens)
• C.R.C.P. 98 (Venue); C.R.C.P. 105.1 (Lis pendens)
• Twin Lakes Reservoir & Canal Co. v. Bond, 157 Colo. 10, 401 P.2d 586 (1965)
• Keith v. El-Kareh, 729 P.2d 377 (Colo. App. 1986)
• Wilson v. Prentiss, 140 P.3d 288 (Colo. App. 2006)
• "Partition Comes of Age," 50 Colo. Law. 32 (Dec. 2021)
• Uniform Law Commission — Uniform Partition of Heirs Property Act (status reference; not adopted in Colorado)

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