Partition Action Complaint - Georgia

PETITION FOR PARTITION OF REAL PROPERTY

IN THE SUPERIOR COURT OF [______] COUNTY

STATE OF GEORGIA

VERIFIED PETITION FOR PARTITION

NOW COMES Plaintiff, [PLAINTIFF NAME], by and through undersigned counsel, and files this Verified Petition for Partition of real property pursuant to O.C.G.A. § 44-6-140 et seq. and § 44-6-160 et seq. (and, where applicable, the Georgia Uniform Partition of Heirs Property Act, O.C.G.A. § 44-6-180 et seq.), and respectfully shows the Court as follows:

I. PARTIES, JURISDICTION, AND VENUE

1. Plaintiff [PLAINTIFF NAME] is [a resident of [______] County, Georgia / an entity organized under the laws of [______]] with [residence / principal place of business] at [________________________________].

2. Defendant [DEFENDANT NAME] is, upon information and belief, [an individual / entity] whose last known address is [________________________________], and is a cotenant of the Subject Property described below.

3. The following additional persons are joined as Defendants because each holds or claims a record interest, lien, or estate in the Subject Property:

☐ [ADDITIONAL COTENANT], holder of an undivided [____] interest.
☐ [LIENHOLDER / MORTGAGEE], holder of a security deed recorded in Deed Book [______], Page [______].
☐ [JUDGMENT CREDITOR], holder of a judgment lien in Case No. [____________].
☐ The unknown heirs, devisees, successors, and assigns of [__________], deceased.

4. This Court has subject-matter jurisdiction under O.C.G.A. § 44-6-140 et seq. and § 44-6-160 et seq., and Ga. Const. Art. VI, § IV, ¶ I.

5. Venue is proper in [______] County under Ga. Const. Art. VI, § II, ¶ II and O.C.G.A. § 44-6-160, because the Subject Property is located in this county.

II. THE SUBJECT PROPERTY

6. The real property at issue (the "Subject Property") is located at [________________________________], [______] County, Georgia, and is more particularly described as:

[INSERT FULL LEGAL DESCRIPTION]

Tax Parcel ID: [____________]
District / Land Lot / Section: [____________]
Commonly Known As: [________________________________]

7. No provision has been made, by will, deed, agreement, or otherwise, governing how the Subject Property shall be divided among its common owners.

III. COTENANCY AND SHARES

8. The Subject Property is held by the parties as [tenants in common / joint tenants] in the following undivided shares:

9. Plaintiff acquired Plaintiff's undivided interest by virtue of:

☐ Warranty Deed from [__________] dated [__/__/____], recorded in Deed Book [______], Page [______].
☐ Quitclaim Deed dated [__/__/____], Deed Book [______], Page [______].
☐ Intestate succession / Year's Support / probate of the Estate of [__________], Estate No. [____________].
☐ Other: [________________________________].

10. Plaintiff is a "common owner" of the Subject Property and is entitled to seek partition as a matter of right. The right to partition cannot be defeated except as provided by law.

IV. ENTITLEMENT TO PARTITION

11. The parties can no longer hold and use the Subject Property in common to their mutual benefit and advantage, and Plaintiff desires to sever Plaintiff's undivided interest.

12. Plaintiff is entitled to partition of the Subject Property pursuant to O.C.G.A. § 44-6-140 (equitable partition) and/or § 44-6-160 (statutory partition).

V. PARTITION IN KIND vs. PARTITION BY SALE

13. Partition in kind (preferred). The Subject Property [can / cannot] be fairly and equitably divided in kind among the cotenants according to their respective interests without manifest prejudice.

14. Partition by sale. In the alternative, if the Court finds that the Subject Property cannot be divided in kind without great prejudice to the owners, Plaintiff requests that the Court order a sale of the Subject Property and a division of the net proceeds among the cotenants in proportion to their respective interests, pursuant to O.C.G.A. § 44-6-166.1.

15. The Subject Property [consists of a single-family residence on a [____]-acre lot / is unimproved acreage / other: ______], and the following facts bear on whether division in kind is practicable: [________________________________].

VI. UNIFORM PARTITION OF HEIRS PROPERTY ACT (O.C.G.A. § 44-6-180 et seq.)

16. The Subject Property is, or may be, "heirs property" within the meaning of O.C.G.A. § 44-6-180(5) in that:

☐ (A) There is no agreement in a record binding all the cotenants which governs the partition of the property;
☐ (B) One or more of the cotenants acquired title from a relative, whether living or deceased; and
☐ (C) [☐ 20% or more of the interests are held by cotenants who are relatives; ☐ 20% or more of the interests are held by an individual who acquired title from a relative; ☐ 20% or more of the cotenants are relatives].

17. Plaintiff requests that the Court determine whether the Subject Property is heirs property pursuant to O.C.G.A. § 44-6-181, and, if so, proceed under the Georgia Uniform Partition of Heirs Property Act, including:

☐ Determination of fair market value by court-ordered appraisal (O.C.G.A. § 44-6-184);
☐ Notice of the cotenant buyout option and apportionment of the buyout price (O.C.G.A. § 44-6-185);
☐ Partition in kind unless the court finds manifest prejudice to the cotenants as a group after weighing the factors in O.C.G.A. § 44-6-186, including practicability of division, loss of aggregate value, duration of family ownership, sentimental attachment, lawful use, and contributions to taxes/insurance/upkeep; and
☐ Partition by open-market sale, sealed bids, or auction (O.C.G.A. § 44-6-187) only if partition in kind is not ordered.

VII. ACCOUNTING AMONG COTENANTS

18. An accounting is necessary to adjust the equities among the cotenants. Plaintiff requests that, in connection with the partition or distribution of proceeds, the Court credit and charge the cotenants as follows:

19. Contribution. A cotenant who has paid more than their proportionate share of taxes, mortgage debt, insurance, and necessary preservation expenses is entitled to contribution and an equitable credit against the shares of the other cotenants.

20. Ouster / rents offset. [Defendant has been in exclusive possession of the Subject Property since [__/__/____] and has excluded Plaintiff therefrom (ouster), entitling Plaintiff to a credit for the reasonable rental value of Plaintiff's share / Defendant has collected rents and profits from third parties for which Defendant must account].

21. Owelty. To the extent any partition in kind cannot be made in exact proportion to the parties' interests, Plaintiff requests that the Court award owelty (an equalizing money payment) so that the division is just and proportionate in value.

VIII. APPOINTMENT OF PARTITIONERS / COMMISSIONERS

22. Plaintiff requests that the Court appoint partitioners (commissioners) pursuant to O.C.G.A. § 44-6-161 et seq. (or, if the UPHPA applies, disinterested and impartial commissioners under O.C.G.A. § 44-6-186 and § 44-6-187) to view the Subject Property, make a fair and equitable division in kind where practicable, and report to the Court; or, if a sale is ordered, to conduct or oversee the sale and report the proceeds for distribution.

IX. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays:

A. That the Court determine the respective interests of the parties in the Subject Property;

B. That, if the Subject Property is heirs property, the Court proceed under the Georgia Uniform Partition of Heirs Property Act, O.C.G.A. § 44-6-180 et seq., including ordering an appraisal and affording the statutory cotenant buyout;

C. That the Court order partition of the Subject Property in kind among the cotenants according to their respective interests, with owelty as needed;

D. That, if partition in kind cannot be made without great or manifest prejudice to the owners, the Court order the Subject Property sold and the net proceeds divided among the cotenants in proportion to their interests, pursuant to O.C.G.A. § 44-6-166.1 (or § 44-6-187 under the UPHPA);

E. That the Court appoint partitioners/commissioners to effect the partition or sale and report to the Court;

F. That the Court take and state an accounting among the cotenants and award credits, charges, contribution, and offsets as set forth above;

G. For costs of this action, including reasonable attorneys' fees as allowed by law and apportioned among the parties in proportion to their interests; and

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

VERIFICATION

STATE OF GEORGIA )
) ss.
COUNTY OF [______] )

Personally appeared before me [PLAINTIFF NAME], who, after being duly sworn, deposes and states that [he/she/the affiant] is the Plaintiff in the foregoing Verified Petition for Partition, that [he/she] has read the Petition, and that the facts stated therein are true and correct to the best of [his/her] personal knowledge and belief, except as to matters stated on information and belief, and as to those [he/she] believes them to be true.

_________________________________
[PLAINTIFF NAME]

Sworn to and subscribed before me this [____] day of [__________], 20[____].

_________________________________
Notary Public, State of Georgia
My commission expires: [__/__/____]

[NOTARY SEAL]

Respectfully submitted this [____] day of [__________], 20[____].

_________________________________
[ATTORNEY NAME]
Georgia Bar No. [____________]
[FIRM NAME]
[ADDRESS]
[CITY, STATE, ZIP]
Telephone: [____________]
Email: [____________]
Attorney for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that I caused the summons and VERIFIED PETITION FOR PARTITION to be served on each new respondent under O.C.G.A. § 9-11-4, and served any existing party or counsel under § 9-11-5, by the applicable method indicated below:

☐ Personal service through the Sheriff / a duly authorized process server;
☐ Other process method authorized for this recipient: [METHOD AND AUTHORITY] (certified mail or statutory overnight delivery is not a general § 9-11-4 method);
☐ Court-ordered service by publication under O.C.G.A. § 9-11-4(f), after the required affidavit/verified-claim and due-diligence findings, with publication and any known-address mailing completed as ordered;
☐ Court e-filing-provider service on existing parties (served contacts shown on receipt),
☐ Statutory email to an existing party or counsel satisfying § 9-11-5(b), (f),

addressed as follows:

[SERVICE LIST WITH NAMES AND ADDRESSES]

This [____] day of [__________], 20[____].

_________________________________
[ATTORNEY NAME], Georgia Bar No. [____________]
Attorney for Plaintiff

SOURCES AND REFERENCES

• O.C.G.A. § 44-6-160 (Statutory Partition — Grounds; Jurisdiction; Contents of Petition) — https://law.justia.com/codes/georgia/title-44/chapter-6/article-7/part-2/subpart-2/section-44-6-160/
• O.C.G.A. § 44-6-161 et seq. (Statutory Partition — Procedure; Partitioners)
• O.C.G.A. § 44-6-166.1 (Sale in Lieu of Partition in Kind)
• O.C.G.A. § 44-6-140 et seq. (Equitable Partition)
• O.C.G.A. § 44-6-180 (Georgia UPHPA — Definitions; "Heirs Property") — https://codes.findlaw.com/ga/title-44-property/ga-code-sect-44-6-180/
• O.C.G.A. § 44-6-181 (Determination Whether Property Is Heirs Property)
• O.C.G.A. § 44-6-184 (Determination of Value; Appraisal)
• O.C.G.A. § 44-6-185 (Cotenant Buyout)
• O.C.G.A. § 44-6-186 (Partition in Kind; Manifest-Prejudice Factors) — https://law.justia.com/codes/georgia/title-44/chapter-6/article-7/part-2/subpart-3/section-44-6-186/
• O.C.G.A. § 44-6-187 (Partition by Sale; Open-Market Sale, Sealed Bids, Auction)
• O.C.G.A. § 44-6-189.1 (Uniformity of Application and Construction)
• O.C.G.A. § 9-11-4 (Process; Service)
• Faison v. Faison, 344 Ga. App. 600 (2018) (heirs-property determination mandatory)
• Morton v. Pitts, 357 Ga. App. 513 (2020) (appraisal mandatory under UPHPA)
• Wallace v. Wallace, 260 Ga. 400 (1990) (statutory partition limited to tenants in common)

DISCLAIMER: This template is provided for informational purposes only and does not constitute legal advice or create an attorney-client relationship. Georgia partition practice differs materially depending on whether the action proceeds as statutory partition (§ 44-6-160), equitable partition (§ 44-6-140), or under the Uniform Partition of Heirs Property Act (§ 44-6-180); the UPHPA is mandatory when the property qualifies as heirs property. Consult a licensed Georgia attorney before filing.