Partition Action Complaint - Iowa

IOWA PETITION FOR PARTITION OF REAL PROPERTY

PART 1 — PRE-FILING CHECKLIST

☐ Obtain current abstract/title commitment identifying every cotenant, lienholder, heir, and devisee (all are indispensable parties under § 651.5).
☐ Determine each owner's fractional/undivided interest and the source of each interest.
☐ Confirm the property is NOT subject to a pending probate sale application and that any § 651.3 waiting period (four months after second publication of notice of appointment of personal representative) has run.
☐ Decide whether to request partition in kind (must affirmatively plead it; default is sale) or to proceed by sale.
☐ Evaluate whether the property is "heirs property" under § 651.1(5) (tenancy in common; no recorded partition agreement binding all cotenants; at least one cotenant acquired title from a relative; and 20%+ of interests held by relatives, by an individual who acquired from a relative, or 20%+ of cotenants are relatives). If so and an in-kind partition is requested, Subchapter III governs.
☐ Compile an accounting of contributions (taxes, insurance, mortgage, necessary repairs, improvements) and offsets (rents collected, value of exclusive possession/ouster) for each cotenant.
☐ Confirm venue (county where the real estate is situated).
☐ Prepare and arrange to index the petition under Iowa Code § 617.10 (lis pendens) upon filing.

PART 2 — PETITION FOR PARTITION

Court Caption

IN THE IOWA DISTRICT COURT IN AND FOR [____________________] COUNTY

Case No.: [________________________________]

PETITION FOR PARTITION OF REAL PROPERTY (Equitable Proceeding — Iowa Code Ch. 651)

COMES NOW Plaintiff and for cause of action against Defendants states:

I. Parties

1. Plaintiff [____________________________________] is a [☐ natural person residing in / ☐ entity organized under the laws of] [____________________], with an address at [________________________________________________].

2. Defendant [____________________________________] is, upon information and belief, a [☐ natural person / ☐ entity] with last known address at [________________________________________________], and is a cotenant of the Property described below.

3. Pursuant to Iowa Code § 651.5, all persons indispensable to the partition — including every owner of an undivided interest and every holder of a lien on all or part of the Property — are joined as parties. The following lienholders are named as parties: [____________________________________].

4. ☐ The interests of any unborn or unascertained person are subject to this Court's jurisdiction under Iowa Code § 651.5(3); Plaintiff requests appointment of a guardian ad litem for any such person.

II. Jurisdiction and Venue

5. This Court has jurisdiction over this equitable partition proceeding pursuant to Iowa Code §§ 651.2 and 651.4.

6. Venue is proper in [____________________] County because the real property that is the subject of this action is situated in this county.

7. ☐ No estate of any owner of the Property is in probate or administration; OR ☐ the waiting period and conditions of Iowa Code § 651.3 have been satisfied, and no application to sell the Property is pending in any probate proceeding.

III. The Property

8. The real property subject to partition (the "Property") is located at [STREET ADDRESS, CITY], [____________________] County, Iowa, and is legally described as follows:

Legal Description: [____________________________________________________________]

Parcel / Tax ID: [____________________________________]

Book / Page (Recorded Instrument): [____________________________________]

IV. Cotenancy and Shares

9. The Property is owned by the parties as tenants in common in the following undivided shares (Iowa Code § 651.4):

10. Plaintiff acquired Plaintiff's undivided [____]/[____] interest by [☐ Warranty / ☐ Quitclaim / ☐ Special Warranty / ☐ Court / ☐ Trustee's] Deed dated [__/__/____], recorded [__/__/____] in Book [______], Page [______], Records of [____________________] County, Iowa; OR by inheritance/devise from [Decedent], Estate No. [____________].

V. Entitlement to Partition

11. Plaintiff and the other cotenants hold the Property in tenancy in common, and no recorded agreement binding all cotenants prohibits or governs the partition of the Property.

12. Plaintiff is entitled to partition of the Property as a matter of right under Iowa Code § 651.2. The cotenants cannot agree on the use, management, or disposition of the Property, and partition is necessary.

VI. Manner of Partition Requested

13. Pursuant to Iowa Code § 651.2, property subject to partition shall be partitioned by sale, with the proceeds divided among the owners according to their respective interests, unless an owner requests partition in kind and the court determines partition in kind is equitable and practicable. Plaintiff requests the following (check one):

☐ Partition by sale (Iowa Code § 651.18). The Property cannot be divided in kind without manifest prejudice to the owners because [residential dwelling on a single lot / value would be materially diminished by division / other: ______________], and the interests of the owners will best be served by a sale and division of the net proceeds.

☐ Partition in kind (Iowa Code § 651.16). The Property is susceptible of physical division into parcels of corresponding value, partition in kind is equitable and practicable, and Plaintiff requests that the Property be divided in kind, with owelty payments under § 651.16(4) as necessary to equalize value among the shares.

VII. Heirs Property Allegations (if applicable — Iowa Code §§ 651.27–651.32)

14. ☐ The Property is "heirs property" within the meaning of Iowa Code § 651.1(5) because:

☐ (a) there is no recorded agreement binding all cotenants that governs partition of the Property;
☐ (b) one or more cotenants acquired title from a living or deceased relative; and
☐ (c) one or more of the following applies: [☐ 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. ☐ Because the Property is heirs property and a cotenant requests partition in kind, the action shall proceed under Subchapter III. Plaintiff acknowledges that the court must order an appraisal and determine fair market value (§ 651.28), that nonrequesting cotenants may elect a cotenant buyout of the interest of any cotenant requesting sale (§ 651.29), and that the court must order partition in kind unless it finds, after weighing the § 651.31 factors (practicability of division, fair-market-value comparison, duration of family ownership, sentimental attachment, lawful use, contributions to taxes/insurance/upkeep, tax consequences, and other relevant factors), that partition in kind will result in great prejudice to the cotenants as a group (§ 651.30).

VIII. Accounting Among Cotenants

16. An equitable accounting among the cotenants is required so that, before or upon distribution, each cotenant is charged or credited for the following:

☐ Contributions paid by a cotenant beyond that cotenant's proportionate share — including ad valorem taxes, hazard insurance, mortgage principal and interest, assessments, and necessary repairs and preservation expenses:
[____________________________________________________________].

☐ Value of improvements made by a cotenant that enhanced the value of the Property: [____________________________________________________________].

☐ Rents and profits collected by a cotenant from the Property, or the reasonable rental value attributable to a cotenant's exclusive possession or ouster of another cotenant: [____________________________________________________________].

☐ Owelty payments necessary to equalize the value of parcels in any partition in kind (Iowa Code §§ 651.1(6), 651.16(4)).

17. Plaintiff requests that the Court adjust the parties' respective shares of the Property or of the sale proceeds to reflect the foregoing accounting, as the equities require.

IX. Appointment of Referee; Appraisal

18. Pursuant to Iowa Code § 651.12, Plaintiff requests that the Court file an initial decree establishing the shares and interests of all owners, appoint one referee (unless all owners agree to a larger number), order an appraisal of the Property (by three disinterested persons with knowledge of property valuation, or by such other method as the owners agree), and direct the referee to report recommendations for completing the partition.

X. Prayer for Relief

WHEREFORE, Plaintiff respectfully prays that this Court, sitting in equity:

A. Determine and establish the respective shares and interests of all parties in the Property by initial decree under Iowa Code § 651.12;

B. Appoint a referee and order an appraisal of the Property as provided in Iowa Code § 651.12;

C. Order the Property partitioned [☐ by sale under Iowa Code § 651.18 / ☐ in kind under Iowa Code § 651.16, with owelty as necessary];

D. ☐ If the Property is heirs property and partition in kind is requested, proceed under Iowa Code §§ 651.27–651.32, including the cotenant-buyout procedure of § 651.29;

E. Order a full accounting among the cotenants and adjust the parties' shares of the Property or the net proceeds to reflect contributions, rents/ouster offsets, improvements, and owelty;

F. Direct distribution of the net proceeds of any sale to the parties in proportion to their adjusted interests, subject to a prior charge for costs (Iowa Code § 651.21);

G. Tax the costs of this action, including referee, appraiser, and abstract expenses, among the parties in proportion to their interests (Iowa Code §§ 651.22, 651.24);

H. Award Plaintiff's attorney a reasonable fee, taxed as costs, pursuant to Iowa Code § 651.23;

I. Direct the Clerk to index this Petition under Iowa Code § 617.10 to charge all third persons with notice of its pendency; and

J. Grant such other and further relief as the Court deems just and equitable.

Respectfully submitted this [____] day of [______________], [______].

[LAW FIRM NAME]

By: ______________________________
[Attorney name], AT[__________]
[Firm address]
[Phone] | [Email]
ATTORNEY FOR PLAINTIFF

PART 3 — VERIFICATION

STATE OF IOWA
COUNTY OF [____________________] ss.

I, [____________________________________], being first duly sworn upon oath, depose and state that I am the Plaintiff in the above-captioned action; that I have read the foregoing Petition for Partition; and that the facts stated therein are true and correct based upon my personal knowledge, except as to those matters alleged on information and belief, and as to those, I believe them to be true.

______________________________
[Plaintiff Name]

Subscribed and sworn to before me this [____] day of [______________], [______].

______________________________
Notary Public — State of Iowa
My commission expires: [__/__/____]

PART 4 — NOTICE OF LIS PENDENS (Iowa Code §§ 617.10–617.11)

NOTICE OF LIS PENDENS

Pursuant to Iowa Code §§ 617.10 and 617.11, notice is hereby given that the following action affecting real estate is pending in the Iowa District Court for [____________________] County:

Real Property Affected (legal description):

[____________________________________________________________]

Dated this [____] day of [______________], [______].

______________________________
[Attorney name], AT[__________]
ATTORNEY FOR PLAINTIFF

PART 5 — CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____] a true and correct copy of the foregoing was served upon all parties of record by [☐ the Iowa Electronic Document Management System (EDMS) / ☐ U.S. Mail / ☐ personal service / ☐ service by publication per Iowa R. Civ. P. 1.310] at the addresses below:

[____________________________________________________________]

______________________________
[Attorney name], AT[__________]

Sources and References

• Iowa Code Chapter 651 (Partition): https://www.legis.iowa.gov/docs/code/651.pdf
• Iowa Code § 651.2 (Action for partition — sale is default unless in-kind requested and equitable and practicable)
• Iowa Code § 651.12 (Initial decree; one referee; appraisal)
• Iowa Code § 651.16 (Partition in kind; owelty)
• Iowa Code §§ 651.27–651.32 (Special Provisions for Partition of Heirs Property)
• Iowa Code §§ 617.10–617.11 (Lis pendens)
• 2018 Iowa Acts, ch. 1108 (SF 2175 — complete revision of partition law, eff. July 1, 2018)
• Newhall v. Roll, 888 N.W.2d 636 (Iowa 2016) (pre-2018 law strongly favoring partition by sale; owelty discussion)
• Center for Agricultural Law & Taxation (Iowa State Univ.), "A Completely New Partition Law is Coming to Iowa July 1"