Partition Action Complaint - Mississippi

COMPLAINT FOR PARTITION OF REAL PROPERTY — MISSISSIPPI

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 Miss. Code §§ 11-21-1 et seq.
8. Count II — Uniform Partition of Heir Property Act (§§ 91-31-1 et seq.)
9. Count III — Accounting Among Cotenants
10. Appointment of Commissioners / Master
11. Process on Unknown Cotenants
12. Prayer for Relief
13. Signature Block
14. Verification
15. Certificate of Service
16. Mississippi Practice Notes
17. Sources and References

1. CAPTION

IN THE CHANCERY COURT OF [________________________________] COUNTY, MISSISSIPPI

Cause No.: [________________________________]

COMPLAINT FOR PARTITION OF REAL PROPERTY AND FOR AN ACCOUNTING

COMES NOW the Plaintiff, by and through undersigned counsel, and files this Complaint for Partition against the Defendants, and would respectfully show unto the Court as follows:

2. PARTIES, JURISDICTION, AND VENUE

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

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

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

2.4 The Unknown Defendants are the unknown heirs-at-law of [________________________________], deceased, and all other persons having or claiming any legal or equitable interest in the Property, whose names, addresses, and post office addresses are unknown to Plaintiff after diligent search and inquiry, and who are made parties pursuant to Miss. R. Civ. P. 4(c)(4).

2.5 Jurisdiction. This Court has jurisdiction over this partition action pursuant to Miss. Code §§ 11-21-1 and 11-21-3, which authorize the chancery court to partition land held by joint tenants, tenants in common, or coparceners having an estate in possession.

2.6 Venue. Venue is proper in this Court under Miss. Code § 11-21-3 because the land, or some part thereof, is situated in [________________________________] County, Mississippi. [If held by devise or descent: alternatively, venue lies in the county in which the will was probated or letters of administration were granted.]

3. THE SUBJECT PROPERTY

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

Street Address: [________________________________]

Tax Parcel ID: [________________________________]

Title Reference: Recorded in the Office of the Chancery Clerk of [________________________________] County, Mississippi, in Deed Book [____], Page [____].

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

3.2 The Property consists of approximately [____] acres of [agricultural / timber / residential / commercial / vacant] real property, together with all improvements, easements, 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 / coparceners] in the following undivided shares:

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 partition of the Property.

5. NATURE OF TITLE AND ENTITLEMENT TO PARTITION

5.1 Each party named in Section 4 owns an indefeasible fee simple title to an undivided interest in the Property, having an estate in possession and not in reversion or remainder, within the meaning of Miss. Code § 11-21-3.

5.2 Plaintiff is entitled to a partition of the Property and to have Plaintiff's interest set apart in fee simple, free from the claims of the other cotenants.

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, which is the favored remedy under Mississippi law. If, upon hearing, the Court is of the opinion that a sale will better promote the interest of all parties than a partition in kind, or that an equal division cannot be made, Plaintiff seeks a partition by sale under Miss. Code § 11-21-11 and a division of the proceeds among the cotenants according to their respective interests.

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:

☐ 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 MISS. CODE §§ 11-21-1 ET SEQ.

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

7.2 As a cotenant owning an undivided fee simple interest, Plaintiff is entitled to partition of the Property by judgment of this chancery court under Miss. Code §§ 11-21-1 and 11-21-3.

7.3 Partition in kind is the preferred method. Fuller v. Chimento, 824 So. 2d 599 (Miss. 2002). If the Property can be equally divided, Plaintiff requests that the Court partition the Property in kind and set off to each cotenant a parcel commensurate with that cotenant's interest, with owelty (compensation for inequality) under Miss. Code § 11-21-31 where any allotment is unequal.

7.4 If the party seeking a sale meets the burden of proving that a sale will better promote the interest of all parties than a partition in kind, or that an equal division cannot be made, Plaintiff requests, in the alternative, a partition by sale under Miss. Code § 11-21-11 and a division of the net proceeds among the cotenants according to their respective interests, subject to the accounting in Count III.

8. COUNT II — UNIFORM PARTITION OF HEIR PROPERTY ACT

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

8.2 The Property is "heir property" within the meaning of Miss. Code § 91-31-3 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 heir property, this action must be partitioned under the Uniform Partition of Heir Property Act, Miss. Code §§ 91-31-1 to 91-31-25, unless all cotenants otherwise agree in a record. See Miss. Code § 11-21-5.

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 Miss. Code § 91-31-11, 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, under Miss. Code § 91-31-13;

(c) If the buyout does not resolve the action, order partition in kind unless the Court finds, after considering the factors in Miss. Code § 91-31-17 (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 Miss. Code § 91-31-19.

9. COUNT III — ACCOUNTING AMONG COTENANTS

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

9.2 Plaintiff is entitled to an 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 charges and credits described below, consistent with Miss. Code § 11-21-27.

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 (compensation for inequality) under Miss. Code § 11-21-31 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 / MASTER

10.1 If the Court orders partition in kind, Plaintiff requests that the Court appoint disinterested commissioners to make the partition, establish boundaries, and report to the Court for confirmation.

10.2 If the Court orders a sale, Plaintiff requests that the Court direct the sale (and, where the Property is heir property, appoint a master under Miss. Code § 91-31-9 and conduct any sale in the manner required by Miss. Code § 91-31-19), and distribute the net proceeds in accordance with the Court's decree and the accounting in Count III.

11. PROCESS ON UNKNOWN COTENANTS

11.1 The names, addresses, and post office addresses of the Unknown Defendants are unknown to Plaintiff after diligent search and inquiry, as set forth in the accompanying affidavit.

11.2 Plaintiff requests that process be made upon the Unknown Defendants by publication pursuant to Miss. R. Civ. P. 4(c)(4) and Miss. Code § 13-3-19, by publishing the summons once each week for three (3) consecutive weeks in a newspaper of general circulation in [________________________________] County. Where the Property is heir property and notice by publication is sought, Plaintiff will post a conspicuous sign on the Property as required by Miss. Code § 91-31-7.

12. PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that:

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

B. The Court adjudicate the respective undivided interests of all cotenants in the Property;

C. The Court order:

☐ Partition in kind of the Property under Miss. Code §§ 11-21-1 et seq., with owelty as necessary; or

☐ A partition by sale under Miss. Code § 11-21-11 and a division of the net proceeds according to the parties' respective interests;

☐ A determination that the Property is heir property and application of the appraisal, cotenant buyout, and partition procedures of the Uniform Partition of Heir Property Act, Miss. Code §§ 91-31-1 to 91-31-25;

D. The Court 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. The Court appoint commissioners and/or a master as appropriate;

F. The Court award the costs of this action, including reasonable attorneys' fees, appraisal fees, and commissioners'/master's fees, apportioned among the parties in proportion to their interests as the Court deems equitable; and

G. The Court grant such other and further relief as it deems just and proper.

13. SIGNATURE BLOCK

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

[PLAINTIFF NAME], Plaintiff

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

14. VERIFICATION

STATE OF MISSISSIPPI
COUNTY OF [________________________________]

PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the said county and state, [PLAINTIFF NAME], who, being by me first duly sworn, states on oath that he/she is the Plaintiff in the foregoing Complaint for Partition; that he/she has read the same; and that the matters and facts stated therein are true and correct as therein stated, except as to matters stated upon information and belief, and as to those he/she believes them to be true.

[________________________________]
[PLAINTIFF NAME]

SWORN TO AND SUBSCRIBED before me this the [____] day of [________________________________], 20[____].

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

[NOTARY SEAL]

15. CERTIFICATE OF SERVICE

I, the undersigned attorney, hereby certify that I have this day served a true and correct copy of the foregoing Complaint for Partition and all exhibits upon the following by [the MEC (Mississippi Electronic Courts) 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]

THIS the [____] day of [________________________________], 20[____].

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

16. MISSISSIPPI PRACTICE NOTES

1. Chancery court jurisdiction. Partition is filed in the chancery court of the county where the land, or part of it, is situated; if the land was acquired by devise or descent, venue may also lie where the will was probated or administration granted. Miss. Code § 11-21-3.

2. Partition in kind favored. Mississippi strongly favors partition in kind. Fuller v. Chimento, 824 So. 2d 599 (Miss. 2002); Overstreet v. Overstreet, 692 So. 2d 88 (Miss. 1997). The party seeking a sale bears the burden of proving, under Miss. Code § 11-21-11, that a sale will better promote the interest of all parties or that an equal division cannot be made; affirmative proof of at least one prong must appear in the record.

3. Uniform Partition of Heir Property Act (2020). Effective July 1, 2020, Mississippi adopted the UPHPA, codified at Miss. Code §§ 91-31-1 to 91-31-25 (Title 91, Chapter 31). It supplements ch. 11-21 and controls where the court determines the property is "heir property"; if any inconsistency exists, the UPHPA controls (§ 91-31-5). Section 11-21-5 directs the court to determine heir-property status and apply the Act.

4. UPHPA sequence. Determine heir-property status → determination of value/appraisal (§ 91-31-11) → cotenant buyout of the interest of any cotenant seeking sale (§ 91-31-13) → if unresolved, partition in kind unless manifest prejudice (§§ 91-31-15, 91-31-17) → if sale ordered, open-market sale preferred (§ 91-31-19).

5. Accounting and owelty. Under Miss. Code § 11-21-27, the chancellor adjusts charges and credits among cotenants (taxes, deed-of-trust payments, insurance, necessary repairs, improvements to the extent of added value) and charges an occupying or rent-collecting cotenant with rental value or net rents where there has been ouster. Owelty (§ 11-21-31) equalizes unequal in-kind allotments.

6. Process on unknowns. Unknown heirs are served by publication under Miss. R. Civ. P. 4(c)(4) and Miss. Code § 13-3-19, supported by an affidavit of diligent search and inquiry. Heir-property cases require posting a sign on the property when publication notice is used (§ 91-31-7).

7. Finality. The final judgment of partition settles the rights of all parties, is conclusive, and serves as an instrument of evidence of title, subject to post-trial review and repartition as provided. Miss. Code § 11-21-35.

8. Tenancy by the entirety / homestead. Confirm the form of ownership and any homestead rights; property held by spouses as an estate by the entirety is not subject to partition during the marriage.

17. SOURCES AND REFERENCES

• Miss. Code §§ 11-21-1 to 11-21-45 (Partition of Property — Realty) — https://law.justia.com/codes/mississippi/title-11/chapter-21/
• Miss. Code § 11-21-3 (Partition by decree of chancery court)
• Miss. Code § 11-21-11 (Sale better promoting interest of all parties)
• Miss. Code §§ 91-31-1 to 91-31-25 (Uniform Partition of Heir Property Act) — https://law.justia.com/codes/mississippi/title-91/chapter-31/
• 2020 S.B. 2553 (Laws 2020, ch. 433) (enacting Mississippi UPHPA) — https://legiscan.com/MS/bill/SB2553/2020
• Fuller v. Chimento, 824 So. 2d 599 (Miss. 2002)
• Overstreet v. Overstreet, 692 So. 2d 88 (Miss. 1997)
• Mississippi Center for Justice — Uniform Partition of Heirs Property Act — https://mscenterforjustice.org/our-work/heirs-property/uphpa/

EXHIBIT "A" — LEGAL DESCRIPTION

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

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