Partition Action Complaint - Missouri

PETITION FOR PARTITION OF REAL PROPERTY — MISSOURI

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 Chapter 528
8. Count II — Save the Family Farm Act (Heirs' Property; §§ 528.700–528.750)
9. Count III — Accounting Among Cotenants
10. Appointment of Commissioners
11. Service on Unknown Cotenants
12. Prayer for Relief
13. Signature Block
14. Verification
15. Certificate of Service
16. Missouri Practice Notes
17. Sources and References

1. CAPTION

IN THE CIRCUIT COURT OF [________________________________] COUNTY, MISSOURI

Case No.: [________________________________]

Division: [____]

PETITION FOR PARTITION OF REAL PROPERTY AND FOR AN ACCOUNTING

COMES NOW Plaintiff, by and through undersigned counsel, and for Plaintiff's Petition for Partition against Defendants, states to the Court as follows:

2. PARTIES, JURISDICTION, AND VENUE

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

2.2 Defendant [DEFENDANT COTENANT #1] is an adult resident of [________________________________] and owns an undivided [____]/[____] interest in the Property.

2.3 Defendant [DEFENDANT COTENANT #2] is [an adult resident of [________________________________] / a [type] entity] and owns an undivided [____]/[____] interest in the Property.

2.4 The Unknown Defendants are the unknown heirs, devisees, donees, alienees, and successors of [________________________________], deceased (a former record cotenant), and all other persons claiming any interest in the Property, whose names cannot be ascertained after diligent inquiry, and who are joined pursuant to Mo. Rev. Stat. § 528.070 and Mo. R. Civ. P. 54.

2.5 Jurisdiction. This Court has jurisdiction over this partition action pursuant to Mo. Rev. Stat. §§ 528.010 and 528.030, which authorize any one or more parties holding lands in joint tenancy, tenancy in common, or coparcenary to file a petition in the circuit court for partition or, if partition cannot be had without great prejudice, for sale and division of the proceeds.

2.6 Venue. Venue is proper in this Court under Mo. Rev. Stat. § 528.040 because the real property that is the subject of this action is situated in [________________________________] County, Missouri.

3. THE SUBJECT PROPERTY

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

Street Address: [________________________________]

Locator / Parcel No.: [________________________________]

Title Reference: Recorded in the Office of the Recorder of Deeds of [________________________________] County, Missouri, in Book [____], Page [____] (Document No. [________________________________]).

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

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

4. THE COTENANCY AND RESPECTIVE SHARES

4.1 The Property is held by the parties as [tenants in common / joint tenants / coparceners] in the following undivided shares:

4.2 The shares set forth above represent the entire ownership of the Property. No agreement in a record binding all cotenants governs or restricts partition of the Property, and partition is not contrary to any will (Mo. Rev. Stat. § 528.130).

5. NATURE OF TITLE AND ENTITLEMENT TO PARTITION

5.1 Each party named in Section 4 holds a present, undivided interest in the Property — including an estate in fee, for life, or for years — as a [tenant in common / joint tenant / coparcener] within the meaning of Mo. Rev. Stat. § 528.030.

5.2 As a cotenant, Plaintiff has an absolute right to partition the Property; this right does not depend on the consent of the other cotenants. See Stout v. Stout, 564 S.W.2d 89 (Mo. App. 1978).

5.3 The cotenants cannot agree on the use, division, or disposition of the Property, and judicial partition is necessary.

5.4 Plaintiff seeks partition in kind (admeasurement and setting off of each cotenant's share) if it can be done without great prejudice to the parties. If partition in kind cannot be made without great prejudice, Plaintiff seeks a sale of the premises under Mo. Rev. Stat. § 528.340 and a division of the proceeds among the parties according to their respective rights and interests.

6. LIENS AND ENCUMBRANCES

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

☐ Deed of Trust: in favor of [________________________________], Book [____], Page [____], original principal $[____].

☐ Judgment / Tax Lien: [________________________________].

☐ Other Encumbrance: [________________________________].

☐ None known of record.

6.2 Each holder of a deed of trust, lien, or other interest in the Property is joined so that its rights may be adjudicated and protected in the partition and in the distribution of any sale proceeds.

7. COUNT I — PARTITION UNDER CHAPTER 528

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

7.2 As a cotenant holding an undivided interest, Plaintiff is entitled to partition of the Property under Mo. Rev. Stat. §§ 528.010 and 528.030 and Mo. Sup. Ct. R. 96.

7.3 If the Property can be partitioned in kind without great prejudice to the parties, Plaintiff requests that the Court appoint commissioners under Mo. Rev. Stat. § 528.200 to admeasure and set off to each cotenant a parcel commensurate with that cotenant's interest, with a money payment (owelty) to equalize any unequal allotment.

7.4 If the Property cannot be partitioned in kind without great prejudice to the parties, Plaintiff requests, in the alternative, that the Court order a sale of the Property under Mo. Rev. Stat. § 528.340 and a division of the net proceeds among the parties according to their respective rights and interests under Mo. Rev. Stat. § 528.460, subject to the accounting in Count III.

8. COUNT II — SAVE THE FAMILY FARM ACT (HEIRS' PROPERTY)

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

8.2 The Property is "heirs' property" within the meaning of Mo. Rev. Stat. § 528.700 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, whether living or deceased; and (d) [twenty percent (20%) or more of the 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 is subject to the Save the Family Farm Act, Mo. Rev. Stat. §§ 528.700 to 528.750.

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 under Mo. Rev. Stat. § 528.720, 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, as provided by the Act;

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

(d) If partition in kind is not ordered, direct an open-market sale (or, if more economically advantageous and in the best interest of the cotenants as a group, a sale by sealed bids or auction) under Mo. Rev. Stat. § 528.740.

8.5 Pursuant to Mo. Rev. Stat. § 528.710, if Plaintiff seeks an order of notice by publication and the Court determines that the Property may be heirs' property, Plaintiff will, within ten (10) days after the Court's determination, post and maintain a conspicuous sign on the Property identifying the action, the Court, and the property's common designation.

9. COUNT III — ACCOUNTING AMONG COTENANTS

9.1 Plaintiff re-alleges and incorporates paragraphs 2.1 through 8.5 above.

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

9.3 Contributions and credits (in favor of Plaintiff). Plaintiff has paid more than Plaintiff's proportionate share of the following:

9.4 Rents and ouster offsets. [Defendant [________________________________] has been in sole and exclusive possession of the Property since [__/__/____], has excluded Plaintiff (ouster), and/or has collected rents from third parties, and is chargeable with the reasonable rental value and/or 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 accounting and adjust the division or distribution accordingly.

10. APPOINTMENT OF COMMISSIONERS

10.1 Plaintiff requests that the Court appoint three (3) disinterested commissioners pursuant to Mo. Rev. Stat. § 528.200 to make the partition in kind, admeasure and set off the parties' respective shares, and report to the Court; or, where partition in kind cannot be made without great prejudice, that the Court order a sale (with or without commissioners, as permitted by Mo. Rev. Stat. § 528.550) and distribute the proceeds in accordance with its judgment and the accounting in Count III. Where the Property is heirs' property, any sale shall be conducted in the manner required by Mo. Rev. Stat. § 528.740.

11. SERVICE ON UNKNOWN COTENANTS

11.1 The names and addresses of the Unknown Defendants cannot be ascertained after diligent inquiry, including review of probate, recorder, and assessment records.

11.2 Plaintiff requests leave to serve the Unknown Defendants by publication pursuant to Mo. R. Civ. P. 54.12(c) and Mo. Rev. Stat. § 528.070, by publishing notice once each week for four (4) consecutive weeks in a newspaper of general circulation in [________________________________] County. Where the Property may be heirs' property and publication notice is used, Plaintiff will post a sign on the Property as required by Mo. Rev. Stat. § 528.710.

12. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court:

A. Cause process to issue to all Defendants, including by publication upon the Unknown Defendants;

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

C. Order:

☐ Partition in kind of the Property under Mo. Rev. Stat. ch. 528 and Mo. Sup. Ct. R. 96, with owelty as necessary; or

☐ A sale of the Property under Mo. Rev. Stat. § 528.340 and a division of the net proceeds among the parties according to their respective interests under § 528.460;

☐ A determination that the Property is heirs' property and application of the appraisal, cotenant buyout, and open-market-sale procedures of the Save the Family Farm Act, Mo. Rev. Stat. §§ 528.700–528.750;

D. Order an accounting among the cotenants for taxes, deed-of-trust/mortgage payments, insurance, repairs, improvements, rents, and ouster, and adjust the division or distribution accordingly;

E. Appoint commissioners as appropriate;

F. Allow a reasonable attorney's fee and compensation for any guardian ad litem, taxed as costs and apportioned among the parties in proportion to their interests pursuant to Mo. Rev. Stat. § 528.530; and

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

13. SIGNATURE BLOCK

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

[LAW FIRM NAME]

By: [________________________________]
[ATTORNEY NAME], Mo. Bar No. [________________________________]
[FIRM NAME]
[STREET ADDRESS]
[CITY], MO [ZIP]
Telephone: [(___) ___-____]
Email: [________________________________]
Attorney for Plaintiff

14. VERIFICATION

STATE OF MISSOURI
COUNTY OF [________________________________]

I, [PLAINTIFF NAME], being of lawful age and first duly sworn upon my oath, state that I am the Plaintiff in the foregoing Petition for Partition; that I have read the Petition; and that the matters and facts stated therein are true and correct 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 the [____] day of [________________________________], 20[____], a true and correct copy of the foregoing Petition for Partition and all exhibits was served upon the parties listed below via [the Missouri Case.net / eFiling system / United States mail, postage prepaid / personal service], and upon the Unknown Defendants by publication as ordered by the Court:

[SERVICE LIST WITH NAMES AND ADDRESSES]

[________________________________]
[ATTORNEY NAME], Mo. Bar No. [________________________________]

16. MISSOURI PRACTICE NOTES

1. Governing law. Partition is governed by Mo. Rev. Stat. ch. 528 (§ 528.010 et seq.) and Mo. Sup. Ct. R. 96, filed as an equity suit in the circuit court of the county where the land lies (§§ 528.030, 528.040).

2. Absolute right. A cotenant has an absolute right to partition; joint tenancy with right of survivorship does not, by itself, imply an agreement not to partition. Stout v. Stout, 564 S.W.2d 89 (Mo. App. 1978).

3. In kind vs. sale. Partition in kind is preferred; the court orders a sale under § 528.340 only where partition in kind cannot be made without great prejudice to the parties. Commissioners (typically three) are appointed under § 528.200 to admeasure shares and report on divisibility.

4. Save the Family Farm Act (heirs' property). Missouri's heirs'-property statute, §§ 528.700–528.750 (cited as the "Save the Family Farm Act," L. 2019 S.B. 83), adopts the Uniform Partition of Heirs Property Act framework: heirs'-property definition with 20% relative thresholds (§ 528.700), sign-posting on publication notice (§ 528.710), determination of value/appraisal (§ 528.720), cotenant buyout, and open-market sale (§ 528.740). Apply these provisions where the property is heirs' property.

5. Accounting, owelty, and ouster. The court conducts an equitable accounting to credit cotenants who paid disproportionate taxes, deed-of-trust payments, insurance, and necessary repairs (improvements credited to the extent of added value), and to charge an occupying or rent-collecting cotenant with rental value or net rents where there has been ouster. Owelty equalizes unequal in-kind allotments.

6. Liens. Join all deed-of-trust holders and lienholders; the sale and distribution must protect their priority. Confirm whether the Property may be sold subject to or free of existing encumbrances.

7. Attorney's fees. Section 528.530 authorizes the court to allow a reasonable attorney's fee and guardian ad litem compensation, taxed as costs and apportioned among the parties in proportion to their interests — a notable feature of Missouri partition practice.

8. Service by publication. Unknown heirs and absent cotenants are served by publication under Mo. R. Civ. P. 54.12(c) and § 528.070 (typically four consecutive weeks), supported by an affidavit; heirs'-property cases require posting a sign on the property when publication notice is used (§ 528.710).

17. SOURCES AND REFERENCES

• Mo. Rev. Stat. ch. 528 (Partition Suits) — https://revisor.mo.gov/main/OneChapter.aspx?chapter=528
• Mo. Rev. Stat. § 528.030 (Partition; who may bring; how determined) — https://revisor.mo.gov/main/OneSection.aspx?section=528.030
• Mo. Rev. Stat. §§ 528.700–528.750 (Save the Family Farm Act — heirs' property) — https://revisor.mo.gov/main/OneSection.aspx?section=528.700
• Mo. Rev. Stat. § 528.530 (Attorney's fee; guardian ad litem)
• Mo. Sup. Ct. R. 96 (Partition)
• Stout v. Stout, 564 S.W.2d 89 (Mo. App. 1978)
• Uniform Law Commission — Partition of Heirs Property Act — https://www.uniformlaws.org/

EXHIBIT "A" — LEGAL DESCRIPTION

[Insert the legal description of the Property exactly as it appears in the most recent recorded deed, certified by a Missouri-licensed surveyor or attorney.]

End of Template — Missouri Petition for Partition of Real Property.