Partition Action Complaint - Maryland

COMPLAINT FOR PARTITION OF REAL PROPERTY — MARYLAND

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. Liens and Encumbrances
7. Count I — Partition under Real Property § 14-107
8. Count II — Maryland Uniform Partition of Heirs Property Act (§§ 14-701 to 14-721)
9. Count III — Accounting Among Cotenants
10. Appointment of Trustee / Commissioners
11. Service by Publication on Unknown Cotenants
12. Prayer for Relief
13. Signature Block
14. Verification
15. Certificate of Service
16. Maryland Practice Notes
17. Sources and References

1. CAPTION

IN THE CIRCUIT COURT FOR [________________________________] COUNTY, MARYLAND

Case No.: [________________________________]

COMPLAINT FOR PARTITION OF REAL PROPERTY, OR SALE IN LIEU OF PARTITION, AND FOR AN ACCOUNTING AMONG COTENANTS

Plaintiff, by and through undersigned counsel, complaining of Defendants, states as follows:

2. PARTIES, JURISDICTION, AND VENUE

2.1 Plaintiff, [PLAINTIFF'S FULL LEGAL NAME] ("Plaintiff"), is an adult resident of [________________________________] County, [State], whose mailing address is [________________________________], and is a [tenant in common / joint tenant] holding an undivided [____]/[____] interest in the Property described below.

2.2 Defendant [DEFENDANT COTENANT #1], upon information and belief, is an adult resident of [________________________________] County, [State], whose last known address is [________________________________], and holds an undivided [____]/[____] interest in the Property.

2.3 Defendant [DEFENDANT COTENANT #2], upon information and belief, is [a Maryland resident / a [type] entity] whose [last known address / registered agent] is [________________________________], and holds an undivided [____]/[____] interest in the Property.

2.4 The Successor and Unknown Defendants include all testate and intestate successors of [________________________________], deceased (a former record cotenant of the Property), and all other persons, known or unknown, claiming any undivided interest in the Property, whose names and addresses cannot be ascertained by Plaintiff after diligent inquiry.

2.5 Subject-matter jurisdiction is conferred upon this Court by Md. Code, Cts. & Jud. Proc. § 1-501 and by Md. Code, Real Prop. § 14-107, which authorizes a circuit court to decree partition on the petition of any joint tenant, tenant in common, parcener, or concurrent owner.

2.6 Venue is proper in this Court pursuant to Md. Code, Cts. & Jud. Proc. § 6-203, because the real property that is the subject of this action is situated wholly or partially in [________________________________] County, Maryland.

3. THE SUBJECT PROPERTY

3.1 This action concerns the following real property situated in [________________________________] County, Maryland, more particularly described as:

Street Address: [________________________________]

Tax Account / Parcel ID: [________________________________]

Legal Description: See Exhibit "A" attached hereto and incorporated by reference. The Property is more particularly described in the deed recorded among the Land Records of [________________________________] County, Maryland, at Liber [____], Folio [____].

3.2 The Property consists of approximately [____] acres / square feet of [residential / agricultural / commercial / vacant] real property, together with all buildings, improvements, easements, and appurtenances thereto (the "Property").

4. THE COTENANCY AND RESPECTIVE SHARES

4.1 The Property is held by the parties as [tenants in common / joint tenants] under the following instrument(s) of record:

4.2 The shares set forth above represent the entire fee simple ownership of the Property. No agreement in a record binding all cotenants governs or restricts the partition of the Property.

5. NATURE OF TITLE AND ENTITLEMENT TO PARTITION

5.1 Each party named in Section 4 holds a present, undivided, possessory interest in the Property as a concurrent owner within the meaning of Md. Code, Real Prop. § 14-107(a).

5.2 As a cotenant, Plaintiff has an absolute right to partition the Property, which right does not depend on the consent of the other cotenants.

5.3 The cotenants are unable to agree upon a voluntary division, use, sale, or other disposition of the Property, and this dispute can be resolved only by judicial partition.

5.4 Plaintiff seeks partition in kind if the Property can be divided without loss or injury to the parties. If the Property cannot be so divided, Plaintiff seeks partition by sale (sale in lieu of partition) and a division of the net proceeds among the cotenants according to their respective interests, as authorized by Md. Code, Real Prop. § 14-107(a).

6. LIENS AND ENCUMBRANCES

6.1 The following mortgages, deeds of trust, judgment liens, tax liens, or other encumbrances appear of record against the Property or an undivided interest therein:

☐ Mortgage / Deed of Trust: in favor of [________________________________], recorded at Liber [____], Folio [____], in the original principal amount of $[____].

☐ Judgment Lien: in favor of [________________________________], Case No. [________________________________].

☐ Tax Lien / Delinquent Taxes: [________________________________].

☐ Other Encumbrance: [________________________________].

☐ None known of record.

6.2 Pursuant to Md. Code, Real Prop. § 14-107(d), any person holding a mortgage, other encumbrance, or undivided interest in the Property may be made a party, the Property may be sold free and clear of such mortgage or encumbrance, and the rights of each lienholder shall be protected in the distribution of the sale proceeds.

7. COUNT I — PARTITION UNDER REAL PROPERTY § 14-107

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

7.2 Plaintiff, as a [tenant in common / joint tenant] holding an undivided interest in the Property, is entitled to a decree of partition pursuant to Md. Code, Real Prop. § 14-107(a).

7.3 If it appears that the Property can be divided in kind without loss or injury to the parties, Plaintiff is entitled to a decree partitioning the Property and setting off to each cotenant a separately titled parcel commensurate with that cotenant's undivided interest, with owelty (a money payment to equalize unequal allotments) awarded where necessary.

7.4 If it appears that the Property cannot be divided in kind without loss or injury to the parties, Plaintiff is entitled to a decree of sale in lieu of partition under § 14-107(a), the appointment of a trustee to make the sale pursuant to Md. Rule 12-401, and a division of the net proceeds among the cotenants according to their respective rights and interests, subject to the accounting in Count III.

8. COUNT II — MARYLAND UNIFORM PARTITION OF HEIRS PROPERTY ACT

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

8.2 The Property is "heirs property" within the meaning of Md. Code, Real Prop. § 14-701 in that: (a) it is held in tenancy in common; (b) there is no agreement in a record binding all cotenants that governs partition; (c) one or more cotenants acquired title from a relative; and (d) [twenty percent (20%) or more of the undivided interests are held by cotenants who are relatives / twenty percent (20%) or more of the interests are held by an individual who acquired title from a relative / twenty percent (20%) or more of the cotenants are relatives].

8.3 Because the Property is heirs property, this action must proceed under the Maryland Uniform Partition of Heirs Property Act, Md. Code, Real Prop. §§ 14-701 to 14-721, unless all cotenants otherwise agree in a record.

8.4 Plaintiff requests that the Court, in accordance with the Act:

(a) Determine the fair market value of the Property by ordering an appraisal by a disinterested appraiser pursuant to § 14-707, or adopt a value agreed to by all cotenants;

(b) Afford the cotenants who did not request partition by sale the opportunity to exercise the cotenant buyout of the interests of any cotenant who requested partition by sale, pursuant to § 14-708;

(c) If the buyout does not resolve the action, order partition in kind unless the Court finds, after considering the factors in § 14-710 (including each cotenant's contribution to taxes, insurance, and other carrying costs, the duration of ownership, sentimental or ancestral attachment, and lawful use), that partition in kind would result in great prejudice to the cotenants as a group; and

(d) If partition in kind is not ordered, direct a partition by sale by open-market sale, sealed bids, or auction in the manner that is most economically advantageous to the cotenants as a group, pursuant to § 14-711.

9. COUNT III — ACCOUNTING AMONG COTENANTS

9.1 Plaintiff re-alleges and incorporates by reference paragraphs 2.1 through 8.4 above.

9.2 In connection with the partition or sale, Plaintiff is entitled to an equitable accounting among the cotenants, adjusting each cotenant's share of the Property or of the net proceeds to reflect the contributions and offsets described below.

9.3 Contributions and credits (in favor of contributing cotenants). Plaintiff has paid more than Plaintiff's proportionate share of the following, for which Plaintiff seeks contribution / credit:

9.4 Rents and ouster offsets (against occupying cotenant). [Defendant [________________________________] has been in sole and exclusive possession of the Property since [__/__/____] and has [ousted Plaintiff / excluded Plaintiff from possession / collected rents from third parties], and is therefore chargeable with the reasonable rental value of the Property and/or the net rents collected, in the approximate amount of $[____].]

9.5 Owelty. To the extent any partition in kind results in allotments of unequal value, Plaintiff requests that the Court award owelty to equalize the division.

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

10. APPOINTMENT OF TRUSTEE / COMMISSIONERS

10.1 If the Court orders partition in kind, Plaintiff requests that the Court appoint one or more disinterested commissioners to lay out and divide the Property, establish boundaries, and report to the Court.

10.2 If the Court orders a sale in lieu of partition, Plaintiff requests that the Court appoint a trustee pursuant to Md. Rule 12-401 to conduct the sale, report the sale for ratification, and distribute the net proceeds in accordance with the Court's decree and the accounting in Count III. Where the Property is heirs property, any sale shall be conducted in the manner required by Md. Code, Real Prop. § 14-711.

11. SERVICE BY PUBLICATION ON UNKNOWN COTENANTS

11.1 Pursuant to Md. Rule 2-122, Plaintiff requests an Order authorizing service of process by publication on the Successor and Unknown Defendants, on the grounds that their identities and whereabouts cannot be ascertained after diligent inquiry, including review of probate, land, and assessment records and reasonable skip-trace investigation.

11.2 Notice by publication will be made once a week for three (3) successive weeks in a newspaper of general circulation in [________________________________] County, Maryland, together with mailing to each Defendant's last known address. Where the Property is heirs property, Plaintiff will also post a conspicuous sign on the Property as required by Md. Code, Real Prop. § 14-705.

12. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Honorable Court:

A. Issue process to all known Defendants and authorize service by publication upon the Successor and Unknown Defendants;

B. Adjudicate the respective undivided interests of all cotenants in the Property;

C. Enter judgment in favor of Plaintiff:

☐ Decreeing partition in kind of the Property under Md. Code, Real Prop. § 14-107, with owelty as necessary; or

☐ Decreeing a sale in lieu of partition and a division of the net proceeds among the cotenants according to their respective interests;

☐ Determining that the Property is heirs property and ordering the appraisal, cotenant buyout, and partition procedures of the Maryland Uniform Partition of Heirs Property Act, §§ 14-701 to 14-721;

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

E. Appoint a trustee and/or commissioners as appropriate;

F. Order the Property, if sold, to be sold free and clear of mortgages and encumbrances pursuant to § 14-107(d), with lienholders' rights protected in the distribution of proceeds;

G. Award the costs of this action, including reasonable attorneys' fees, appraisal fees, commissioners' and trustee's fees, and other partition expenses, taxed against the parties in proportion to their interests as the Court deems equitable; and

H. Grant such other and further relief as this Court deems just and proper.

13. SIGNATURE BLOCK

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

[LAW FIRM NAME]

By: [________________________________]
[ATTORNEY NAME], CPF/AIS No. [________________________________]
[FIRM NAME]
[STREET ADDRESS]
[CITY], MD [ZIP]
Telephone: [(___) ___-____]
Email: [________________________________]
Attorney for Plaintiff

14. VERIFICATION

STATE OF MARYLAND
[CITY/COUNTY] OF [________________________________], to wit:

I HEREBY CERTIFY, under penalties of perjury, that I am the Plaintiff in the foregoing Complaint for Partition; that I have read the contents of the Complaint; and that the facts and matters stated therein are true and correct to the best of my personal knowledge, information, and belief.

[________________________________]
[PLAINTIFF NAME], Affiant

Sworn to and subscribed before me, a Notary Public in and for the State of Maryland, this [____] day of [________________________________], 20[____].

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

[NOTARY SEAL]

15. CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this [____] day of [________________________________], 20[____], a copy of the foregoing Complaint for Partition, together with all exhibits, was served upon the following parties by [the Maryland Electronic Courts (MDEC) system / first-class mail, postage prepaid / private process server], at the addresses indicated:

[SERVICE LIST WITH NAMES AND ADDRESSES]

[________________________________]
[ATTORNEY NAME]

16. MARYLAND PRACTICE NOTES

1. Two partition tracks. General partition is governed by Md. Code, Real Prop. § 14-107 and Md. Rule 12-401. Effective October 1, 2022, Maryland adopted the Maryland Uniform Partition of Heirs Property Act (Real Prop., Subtitle 7, §§ 14-701 to 14-721). Where the cotenancy meets the heirs-property definition in § 14-701, the UPHPA procedures (appraisal, cotenant buyout, partition-in-kind preference) are mandatory unless all cotenants agree otherwise in a record.

2. Absolute right to partition. A cotenant's right to partition is absolute and does not require the consent of the other cotenants. The remedy is partition in kind unless division would cause loss or injury, in which case the court orders a sale in lieu of partition. § 14-107(a).

3. Sale free and clear. Under § 14-107(d), the property may be sold free and clear of mortgages and other encumbrances, with lienholders paid from the proceeds. Join all lienholders and undivided-interest holders.

4. Trustee under Rule 12-401. Maryland practice appoints a trustee to conduct a court-supervised sale (often advertised and ratified like a foreclosure sale). The trustee files a report of sale for ratification before the proceeds are distributed.

5. Accounting and owelty. Courts adjust the distribution to credit cotenants who paid more than their share of taxes, mortgage, insurance, and necessary repairs (improvements are credited to the extent they enhance value), and to charge an occupying cotenant with rents or rental value where there has been ouster. Owelty equalizes unequal in-kind allotments.

6. Heirs-property posting and notice. Where the property is heirs property, the UPHPA requires conspicuous posting of a sign on the property when notice is sought by publication (§ 14-705) and an appraisal-based determination of value (§ 14-707).

7. Attorneys' fees and costs. Partition costs — including fees of commissioners, trustees, appraisers, and counsel — are generally apportioned among the cotenants in proportion to their interests as an equitable matter; specify the requested apportionment in the prayer.

8. Tenancy by the entirety. Property held by spouses as tenants by the entirety is not subject to partition during the marriage; partition lies only for tenants in common and joint tenants.

17. SOURCES AND REFERENCES

• Md. Code, Real Prop. § 14-107 (Partition; sale in lieu of partition) — https://mgaleg.maryland.gov/
• Md. Code, Real Prop. §§ 14-701 to 14-721 (Maryland Uniform Partition of Heirs Property Act) — https://law.justia.com/codes/maryland/real-property/title-14/subtitle-7/
• Md. Rule 12-401 (Partition or sale in lieu of partition)
• Md. Code, Cts. & Jud. Proc. § 6-203 (Venue)
• Md. Rule 2-122 (Service by publication)
• Uniform Law Commission — Partition of Heirs Property Act — https://www.uniformlaws.org/
• Maryland's New Partition of Property Act (Univ. of Maryland ALEI, Aug. 2022)

EXHIBIT "A" — LEGAL DESCRIPTION

[Insert metes-and-bounds legal description of the Property exactly as it appears in the most recent vesting deed, certified by a Maryland-licensed surveyor or attorney.]

End of Template — Maryland Complaint for Partition of Real Property.