Partition Action Complaint - Hawaii

COMPLAINT FOR PARTITION OF REAL PROPERTY

IN THE CIRCUIT COURT OF THE [______] CIRCUIT

STATE OF HAWAI'I

COMPLAINT FOR PARTITION; SUMMONS

Plaintiff [PLAINTIFF NAME], by and through undersigned counsel, alleges and complains as follows:

I. PARTIES, JURISDICTION, AND VENUE

1. Plaintiff [PLAINTIFF NAME] is [an individual residing in / an entity organized under the laws of] [________________________________] and holds an undivided interest in the Subject Property described below.

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

3. The following persons are joined as necessary parties pursuant to HRS § 668-2 because each holds or may claim an interest, lien, or encumbrance in the Subject Property:

☐ [ADDITIONAL COTENANT], holder of an undivided [____] interest.
☐ [MORTGAGEE / LIENHOLDER], holder of a mortgage / lien recorded as Document No. [____________].
☐ All unknown owners, heirs, devisees, and claimants of [__________], deceased, and all other persons claiming any right, title, or interest in the Subject Property (HRS § 668-2; § 668-9).

4. This Court has jurisdiction under HRS § 668-1, which authorizes any one or more cotenants holding real property as joint tenants or tenants in common to bring an action for partition in the circuit court of the circuit in which the property or some part thereof is situated.

5. Venue is proper in the [______] Circuit because the Subject Property (or part thereof) is situated therein. HRS § 668-1.

II. THE SUBJECT PROPERTY

6. The real property at issue (the "Subject Property") is situated at [________________________________], [______], Hawai'i, and is more particularly described as:

[INSERT FULL LEGAL DESCRIPTION]

Tax Map Key (TMK): [____________]
Recording System: ☐ Land Court (Transfer Certificate of Title No. [______]) ☐ Regular System (Bureau of Conveyances, Document No. [______])
Commonly Known As: [________________________________]

III. NATURE OF TITLE AND COTENANCY SHARES

7. The Subject Property is held by the parties as [tenants in common / joint tenants], with one or more of them holding an estate in fee or a life estate in possession, in the following undivided shares (HRS § 668-1):

8. Plaintiff acquired Plaintiff's undivided interest by:

☐ Deed from [__________] dated [__/__/____], recorded [Land Court Doc. / Bureau of Conveyances Doc.] No. [____________].
☐ Intestate succession / devise from the Estate of [__________], Probate No. [____________].
☐ Other: [________________________________].

IV. ENTITLEMENT TO PARTITION

9. The parties hold the Subject Property in undivided shares and can no longer hold and enjoy it in common to their mutual advantage. Plaintiff desires to sever Plaintiff's interest and is entitled to partition as a matter of right under HRS § 668-1.

10. Pursuant to HRS § 668-7, this Court has full power to adjudicate the rights and interests of the parties, to order partition according to those rights, and to determine all questions of title, encumbrance, or conflicting interests necessary to a complete partition.

V. PARTITION IN KIND vs. PARTITION BY SALE

11. Partition in kind (preferred). The Subject Property [can / cannot] be partitioned in kind among the cotenants according to their respective rights without great prejudice to the owners.

12. Partition by sale. In the alternative, if it appears that partition cannot be made without great prejudice to the owners, Plaintiff requests that the Court order a sale of the Subject Property (or part thereof) at public auction and a division of the net proceeds among the cotenants according to their respective interests, pursuant to HRS § 668-1 and § 668-14.

13. The Subject Property [consists of a single dwelling on a [____]-acre parcel / is unimproved land / other: ______], and the following facts bear on whether division in kind is practicable: [________________________________].

VI. HAWAII UNIFORM PARTITION OF HEIRS PROPERTY ACT (HRS CHAPTER 668A)

14. The Subject Property is, or may be, "heirs property" within the meaning of HRS § 668A-2 in that:

☐ (1) There is no agreement in a record binding all the cotenants that governs partition of the property;
☐ (2) One or more of the cotenants acquired title from a relative, whether living or deceased; and
☐ (3) [☐ 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].

15. Plaintiff requests that the Court determine whether the Subject Property is heirs property pursuant to HRS § 668A-3 and, if so, proceed under chapter 668A, including:

☐ Determination of fair market value, ordinarily by court-ordered appraisal (HRS § 668A-7);
☐ Notice of the cotenant buyout option and apportionment of the buyout price (HRS § 668A-8);
☐ Partition alternatives, with partition in kind ordered unless the court finds it would result in great prejudice to the cotenants as a group after weighing the statutory factors (HRS § 668A-9 and § 668A-10); and
☐ If a sale is ordered, an open-market sale, sealed bids, or auction (HRS § 668A-11).

16. The factors the Court shall consider for partition in kind under HRS § 668A-10 include practicability of division, whether division would materially reduce aggregate value, the collective duration of family ownership, a cotenant's sentimental attachment (including ancestral or other unique value), the lawful use being made of the property, and the degree to which cotenants have contributed their pro rata share of taxes, insurance, and upkeep.

VII. ACCOUNTING AMONG COTENANTS

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

18. Contribution. A cotenant who has advanced 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.

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

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

VIII. APPOINTMENT OF COMMISSIONERS

21. Plaintiff requests that the Court appoint one or more disinterested commissioners pursuant to HRS § 668-13 (or, under the UPHPA, impartial commissioners under HRS § 668A-5) to view and partition the Subject Property in kind where practicable, or to conduct or oversee a sale where partition in kind cannot be made without great prejudice, and to report to the Court.

IX. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment as follows:

A. Determining the respective rights, interests, and shares of the parties in the Subject Property;

B. Determining whether the Subject Property is heirs property and, if so, partitioning it under HRS chapter 668A, including ordering an appraisal and affording the statutory cotenant buyout;

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

D. Alternatively, if partition in kind cannot be made without great prejudice to the owners, ordering a sale of the Subject Property and distribution of the net proceeds among the cotenants according to their respective interests, pursuant to HRS § 668-14 (or § 668A-11);

E. Appointing one or more commissioners to effect the partition or sale and report to the Court;

F. Taking and stating an accounting among the cotenants and awarding credits, charges, contribution, and offsets as set forth above;

G. Applying HRS § 668-17 to require Plaintiff to pay proceeding costs in the first instance; eventually apportioning ordinary costs among the parties in proportion to their interests, subject to the statute's particular-contest exception; and allowing and equitably apportioning attorney fees only as the Court finds appropriate in light of the services performed and benefits derived; and

H. Granting such other and further relief as the Court deems just and equitable.

VERIFICATION

STATE OF HAWAI'I )
) ss.
COUNTY OF [______] )

I, [PLAINTIFF NAME], being first duly sworn, depose and state that I am the Plaintiff in the foregoing action; that I have read the foregoing Complaint for Partition and know the contents thereof; and that the same is true to my own knowledge, except as to matters stated on 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[____].

_________________________________
Notary Public, State of Hawai'i
My commission expires: [__/__/____]

[NOTARY SEAL / CERTIFICATION]

DATED: [______], Hawai'i, this [____] day of [__________], 20[____].

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

INITIAL SERVICE OF PROCESS

Do not use a Rule 5 or JEFS certificate as a substitute for initial service on an unserved cotenant or other defendant. After filing, obtain the clerk-issued summons under HRCP Rule 4(a), serve the summons and Complaint together by the Rule 4(d) method applicable to each known defendant, and have the process server make proof under Rule 4(g). If alternative service is needed for an unknown or absent party, verify the current statute and obtain any required court order before publication or another substitute method.

SOURCES AND REFERENCES

• HRS § 668-1 (Actions for Partition) — https://law.justia.com/codes/hawaii/title-36/chapter-668/section-668-1/
• HRS § 668-2 (Necessary Parties; Unknown Owners)
• HRS § 668-3 (Complaint)
• HRS § 668-7 (Powers of the Court)
• HRS § 668-9 (Unknown and Absent Owners)
• HRS § 668-13 (Commissioners in Partition)
• HRS § 668-14 (Sales; Auction; Notice)
• HRS § 668-17 (Costs)
• HRS Chapter 668A (Hawaii Uniform Partition of Heirs Property Act)
• HRS § 668A-2 (Definitions; "Heirs Property")
• HRS § 668A-3 (Applicability; Relation to Other Law) — https://codes.findlaw.com/hi/division-4-courts-and-judicial-proceedings/hi-rev-st-sect-668a-3/
• HRS § 668A-7 (Determination of Value)
• HRS § 668A-8 (Cotenant Buyout)
• HRS § 668A-9 (Partition Alternatives)
• HRS § 668A-10 (Considerations for Partition in Kind)
• HRS § 668A-11 (Open-Market Sale, Sealed Bids, or Auction)

DISCLAIMER: This template is provided for informational purposes only and does not constitute legal advice or create an attorney-client relationship. Hawai'i partition under HRS chapter 668 is overlaid by the Hawaii Uniform Partition of Heirs Property Act (HRS chapter 668A) for actions filed on or after January 1, 2017; the court must determine whether the property is heirs property, and chapter 668A then controls. Hawai'i's dual Land Court (Torrens) and Regular System recording regimes, and any Native Hawaiian traditional and customary rights, require careful analysis. Consult a licensed Hawai'i attorney before filing.