Partition Action Complaint - Massachusetts

COMPLAINT (PETITION) FOR PARTITION OF REAL PROPERTY — MASSACHUSETTS

TABLE OF CONTENTS

1. Caption
2. Parties, Jurisdiction, and Venue
3. The Subject Property
4. The Cotenancy and Respective Shares
5. Nature of Title and Entitlement to Partition
6. Persons Holding Mortgages, Liens, or Other Interests
7. Count I — Partition under M.G.L. c. 241
8. Count II — Accounting, Contribution, and Improvements
9. Equitable Factors (Heirs / Family Property)
10. Appointment of Commissioner
11. Memorandum of Lis Pendens
12. Prayer for Relief
13. Signature Block
14. Verification
15. Certificate of Service
16. Massachusetts Practice Notes
17. Sources and References

1. CAPTION

COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURT — [LAND COURT DEPARTMENT / PROBATE AND FAMILY COURT DEPARTMENT]

[COUNTY] DIVISION

Docket No.: [________________________________]

COMPLAINT (PETITION) FOR PARTITION OF REAL PROPERTY AND FOR AN ACCOUNTING

Now comes the Plaintiff (Petitioner) and respectfully states as follows:

2. PARTIES, JURISDICTION, AND VENUE

2.1 Plaintiff, [PLAINTIFF'S FULL LEGAL NAME] ("Plaintiff" or "Petitioner"), of [________________________________], [County], Massachusetts, owns a present undivided legal estate in the land described below, holding an undivided [____]/[____] interest as a [tenant in common / joint tenant].

2.2 Defendant [DEFENDANT COTENANT #1], of [________________________________], holds an undivided [____]/[____] interest in the land.

2.3 Defendant [DEFENDANT COTENANT #2], of [________________________________], holds an undivided [____]/[____] interest in the land.

2.4 The Unknown Defendants are all other persons, known or unknown, who claim or may claim any undivided interest in the land, whose names and addresses cannot be ascertained after diligent inquiry.

2.5 Jurisdiction is proper in this Court pursuant to M.G.L. c. 241, § 2, which vests the Land Court and the Probate and Family Court with jurisdiction over petitions for partition. The land is not held by spouses as tenants by the entirety, is not subject to redemption, and is not held solely in trust or by a corporation, limited liability company, or partnership.

2.6 Venue. The land lies in [________________________________] County, Massachusetts, and the petition is properly brought in this Department and Division.

3. THE SUBJECT PROPERTY

3.1 This action concerns the following real property situated in [________________________________], [County], Massachusetts:

Street Address: [________________________________]

Assessor's Map / Lot: [________________________________]

Title Reference: [Recorded in the [________________________________] Registry of Deeds, Book [____], Page [____] / Registered in the Land Court, Certificate of Title No. [____], [________________________________] Registry District].

Legal Description: See Exhibit "A" attached hereto and incorporated by reference.

3.2 The Property is [registered (Torrens) land / unregistered (recorded) land] consisting of approximately [____] acres / square feet of [residential / commercial / agricultural / vacant] land, with all buildings, improvements, and appurtenances (the "Property" or "Land").

4. THE COTENANCY AND RESPECTIVE SHARES

4.1 The Property is held by the parties as [tenants in common / joint tenants], not as tenants by the entirety, in the following undivided shares:

4.2 The shares set forth above represent the entire ownership of the Property. There is a rebuttable presumption under Massachusetts law that the Property should be divided in proportion to the record shares; any party asserting a different beneficial interest bears the burden of proof.

5. NATURE OF TITLE AND ENTITLEMENT TO PARTITION

5.1 Each party named in Section 4 owns a present undivided legal estate in the Land within the meaning of M.G.L. c. 241, § 1.

5.2 Plaintiff has an absolute right to partition the Land, which right does not require the consent of the other cotenants.

5.3 The cotenants cannot agree on the use, division, or sale of the Land, and partition is necessary to terminate the co-ownership.

5.4 Pursuant to M.G.L. c. 241, § 6, this petition requests, in the alternative, (a) the physical division of the Land among the cotenants ("partition by division" / partition in kind), or (b) if the Land cannot be advantageously divided, a sale of the Land and division of the proceeds ("partition by sale").

6. PERSONS HOLDING MORTGAGES, LIENS, OR OTHER INTERESTS

6.1 The following persons hold mortgages, attachments, liens, or other interests in the Land and are named or noticed as required by M.G.L. c. 241, §§ 6 and 33:

☐ Mortgagee: [________________________________], mortgage recorded at Book [____], Page [____].

☐ Lienholder / Attaching Creditor: [________________________________].

☐ Tax / Municipal Lien: [________________________________].

☐ Other: [________________________________].

☐ None known of record.

6.2 Plaintiff has used reasonable diligence to identify and disclose all attachments and liens; failure to disclose is subject to the penalties of M.G.L. c. 241, § 33.

7. COUNT I — PARTITION UNDER M.G.L. c. 241

7.1 Plaintiff re-alleges and incorporates paragraphs 2.1 through 6.2 above.

7.2 As an owner of a present undivided legal estate, Plaintiff is entitled to partition under M.G.L. c. 241, § 1.

7.3 If the Land can be divided without great inconvenience to the owners, Plaintiff requests that the Court, through its commissioner, divide the Land in kind, setting off to each cotenant a parcel commensurate with that cotenant's share, with a money payment (set-off) under M.G.L. c. 241, § 14 to equalize any allotment that is of greater value than a party's share.

7.4 If a part or the whole of the Land cannot be divided without great inconvenience to the owners, or is of greater value than the share of any party, Plaintiff requests, in the alternative, that the whole or part be set off to one or more parties upon payment to the others, or sold under M.G.L. c. 241, § 31, with the net proceeds divided among the cotenants according to their respective interests, subject to the accounting in Count II.

8. COUNT II — ACCOUNTING, CONTRIBUTION, AND IMPROVEMENTS

8.1 Plaintiff re-alleges and incorporates paragraphs 2.1 through 7.4 above.

8.2 In dividing the Land or the proceeds of its sale, the Court should adjust each cotenant's share to reflect the contributions and offsets described below, consistent with the rebuttable presumption of equal division and the compensation provisions of M.G.L. c. 241, §§ 14, 15, 23, and 24.

8.3 Contributions and credits (in favor of Plaintiff). Plaintiff has paid more than Plaintiff's proportionate share of the carrying costs of the Property, for which Plaintiff seeks contribution:

8.4 Rents and occupancy offsets. [Defendant [________________________________] has had sole and exclusive use and occupancy of the Property since [__/__/____] and/or has collected rents from third parties, and should be charged with the reasonable rental value and/or net rents collected, in the approximate amount of $[____], as an offset against Plaintiff's contribution claims.]

8.5 Plaintiff requests that the Court determine the net amount due to or from each cotenant after the foregoing accounting and adjust the division of the Land or the distribution of the sale proceeds accordingly.

9. EQUITABLE FACTORS (HEIRS / FAMILY PROPERTY)

9.1 The Property is family or inherited property: one or more cotenants acquired their undivided interest by descent or devise from [________________________________], a relative, and [________________________________] continues to reside on and maintain the Property.

9.2 Plaintiff requests that, in exercising its broad equitable powers over the partition, the Court consider whether the co-ownership can be terminated by a set-off / buy-out under M.G.L. c. 241, § 14 (one or more cotenants taking the whole upon payment to the others) before ordering a forced sale, so as to preserve the family's interest in the Property where consistent with a just and equitable division.

10. APPOINTMENT OF COMMISSIONER

10.1 Plaintiff requests that the Court appoint a disinterested commissioner (typically an attorney from the court's list) pursuant to M.G.L. c. 241, § 12 to provide notice to all interested parties, determine whether the Land can be advantageously divided, make the partition or conduct any sale as the Court directs, and file a report for confirmation under M.G.L. c. 241, § 16.

11. MEMORANDUM OF LIS PENDENS

11.1 This action affects the title to and the right to possession of the Land within the meaning of M.G.L. c. 184, § 15.

11.2 Plaintiff requests that the Court endorse a Memorandum of Lis Pendens for recording in the [________________________________] Registry of Deeds (or registration in the Land Court District) to provide constructive notice of this action to subsequent purchasers and encumbrancers. A memorandum of lis pendens may not be recorded until it is endorsed by a justice of the Court in accordance with c. 184, § 15.

12. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Honorable Court:

A. Adjudge that Plaintiff and the Defendants are the owners of the Land in the undivided shares set forth above, and that Plaintiff is entitled to partition under M.G.L. c. 241;

B. Appoint a commissioner under M.G.L. c. 241, § 12;

C. Order:

☐ Partition by division (in kind) of the Land, with a money set-off under § 14 to equalize allotments; or

☐ A set-off / buy-out of one or more cotenants' interests under § 14; or

☐ A partition by sale under § 31, with division of the net proceeds among the cotenants according to their respective interests;

D. Order an accounting among the cotenants for taxes, mortgage payments, insurance, repairs, improvements, rents, and occupancy, and adjust the division or distribution accordingly;

E. Endorse and authorize the recording of a Memorandum of Lis Pendens under M.G.L. c. 184, § 15;

F. Award the costs and expenses of partition, including the commissioner's fees and reasonable attorneys' fees, apportioned among the parties in proportion to their interests as the Court deems just under M.G.L. c. 241, § 22; and

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

13. SIGNATURE BLOCK

Date: [__/__/____]

Respectfully submitted,
[PLAINTIFF/PETITIONER], by counsel,

[________________________________]
[ATTORNEY NAME], BBO No. [________________________________]
[FIRM NAME]
[STREET ADDRESS]
[CITY], MA [ZIP]
Telephone: [(___) ___-____]
Email: [________________________________]
Attorney for Plaintiff (Petitioner)

14. VERIFICATION

COMMONWEALTH OF MASSACHUSETTS
COUNTY OF [________________________________], ss.

I, [PLAINTIFF NAME], the Plaintiff (Petitioner) in the foregoing Complaint for Partition, on oath depose and say that I have read the foregoing Complaint, and that the facts stated therein are true to the best of my knowledge, information, and belief.

[________________________________]
[PLAINTIFF NAME]

Subscribed and sworn to before me this [____] day of [________________________________], 20[____].

[________________________________]
Notary Public
My Commission Expires: [__/__/____]

[NOTARY SEAL]

15. CERTIFICATE OF SERVICE

I hereby certify that on this [____] day of [________________________________], 20[____], I served a copy of the foregoing Complaint for Partition upon each Defendant (Respondent) and each person holding a recorded interest in the Land, by [the citation and notice procedure of M.G.L. c. 241, §§ 7–8 / certified mail, return receipt requested / private process server] and, as to unknown or absent parties, by publication once a week for three (3) successive weeks in [a newspaper of general circulation in [________________________________] County], at the addresses set forth below:

[SERVICE LIST WITH NAMES AND ADDRESSES]

[________________________________]
[ATTORNEY NAME], BBO No. [________________________________]

16. MASSACHUSETTS PRACTICE NOTES

1. Governing statute. Partition in Massachusetts is governed entirely by M.G.L. c. 241, §§ 1–37. Any owner of a present undivided legal estate (except a tenant by the entirety) may petition. Canepari v. Pascale, 78 Mass. App. Ct. 840 (2011).

2. Choice of forum. A petition may be filed in the Land Court or the Probate and Family Court (c. 241, § 2). The Probate and Family Court is often preferable where related family matters are pending; the Land Court has special expertise and exclusive jurisdiction issues for registered (Torrens) land.

3. No Massachusetts UPHPA. As of this drafting, Massachusetts has not enacted the Uniform Partition of Heirs Property Act. A bill (2023–2024 Senate No. 2560 / SD.2816, proposing a new c. 241, § 38) was filed but not enacted. Do not plead a Massachusetts UPHPA count or cite a "c. 241A." Treat heirs-property considerations as equitable factors and use the § 14 set-off/buy-out mechanism. Verify current status before filing, as the Legislature may act.

4. Methods of partition. The court may (a) divide the land in kind, (b) set off the whole or part to one or more owners with a money payment to the others (§ 14), or (c) order a partition by sale (§ 31) where the land cannot be advantageously divided. Single-family homes are usually sold; vacant or large parcels may be divided.

5. Commissioner. The court appoints a commissioner (often an attorney) to provide notice, evaluate divisibility, and conduct the partition or sale, then file a report for confirmation (§§ 12, 16).

6. Presumption of equal division; accounting. Proceeds are presumptively divided per record shares, but a cotenant may claim a larger share by proving disproportionate contributions to mortgage, taxes, insurance, and necessary expenses; improvements are compensated under §§ 23–24. An occupying or rent-collecting cotenant may be charged with rental value or net rents.

7. Lis pendens — judicial endorsement. A Memorandum of Lis Pendens under c. 184, § 15 must be endorsed by a justice before it may be recorded. Do not record an unendorsed memorandum.

8. Costs and fees. Costs of partition, including the commissioner's compensation, are apportioned among the parties (§ 22); courts have discretion to charge attorneys' fees against the proceeds in appropriate cases.

17. SOURCES AND REFERENCES

• M.G.L. c. 241, §§ 1–37 (Partition of Land) — https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleIII/Chapter241
• M.G.L. c. 184, § 15 (Memorandum of Lis Pendens)
• Massachusetts Trial Court — FAQ on Partition Cases in the Land Court — https://www.mass.gov/info-details/frequently-asked-questions-about-partition-cases-in-the-land-court
• Canepari v. Pascale, 78 Mass. App. Ct. 840 (2011)
• Massachusetts Senate No. 2560 / SD.2816 (2023–2024) (proposed, not enacted UPHPA) — https://malegislature.gov/Bills/193/SD2816

EXHIBIT "A" — LEGAL DESCRIPTION

[Insert the legal description of the Land exactly as it appears in the most recent deed of record or the Land Court certificate of title.]

End of Template — Massachusetts Complaint (Petition) for Partition of Real Property.