Partition Action Complaint - Montana

MONTANA PARTITION ACTION — COMPLAINT FOR PARTITION OF REAL PROPERTY

PART 1 — COMPLAINT FOR PARTITION

MONTANA [____________________] JUDICIAL DISTRICT COURT
[____________________] COUNTY

Cause No.: [____________________]

COMPLAINT FOR PARTITION OF REAL PROPERTY
(Mont. Code Ann. § 70-29-101 et seq.; Uniform Partition of Heirs Property Act, §§ 70-29-401 to -420)

Plaintiff [PLAINTIFF NAME], by and through undersigned counsel, alleges as follows:

I. PARTIES

1. Plaintiff [PLAINTIFF NAME] is an individual / [entity type] residing at / with a principal place of business at [____________________________________], [____________________] County, Montana.

2. Defendant [DEFENDANT NAME] is, upon information and belief, an individual / [entity type] residing at / with an address of [____________________________________].

3. ☐ Additional Defendant [DEFENDANT NAME] is [____________________________________].

4. Defendants "all persons unknown" are joined because they may claim some right, title, estate, lien, or interest in the Property whose names are unknown to Plaintiff after diligent inquiry.

II. JURISDICTION AND VENUE

5. Plaintiff brings this statutory partition action under Mont. Code Ann. Title 70, chapter 29, including § 70-29-101. Section 70-29-109 requires the complaint to be filed in district court before the plaintiff files the notice of pendency.

6. Venue is proper in [____________________] County under Mont. Code Ann. § 25-2-123(1)(c) because the Property is situated in this County. ☐ If the Property lies in more than one county, Plaintiff selected this county under § 25-2-123(2).

III. THE PROPERTY

7. This action concerns the real property located in [____________________] County, Montana, commonly known as:

Street Address: [____________________________________]
City/Town: [____________________], Montana [__________]
Geocode / Parcel No.: [____________________________________]

8. The legal description of the Property is:

☐ See Exhibit A (metes-and-bounds / lot-and-block legal description), attached and incorporated by reference.

☐ [____________________________________________________________]

IV. NATURE OF TITLE AND COTENANCY INTERESTS

9. The Property is held in cotenancy by the parties as:

☐ Tenants in common, pursuant to that certain [deed / decree of distribution / instrument] dated [__/__/____], recorded [__/__/____] as Document No. [_______________] in the records of the [____________________] County Clerk and Recorder.

☐ Joint tenants with right of survivorship.

☐ Other: [____________________________________].

10. The respective undivided fractional interests of the cotenants in the Property are:

11. Several cotenants hold and are in possession of the Property as joint tenants or tenants in common, and one or more holds an estate of inheritance, for life or lives, or for years, satisfying Mont. Code Ann. § 70-29-101.

12. The interests of all known and unknown persons in the Property are stated specifically and particularly below as far as known to Plaintiff, as § 70-29-103 requires. Any unknown, uncertain, contingent, executory-devise, or contingent-remainder interest is described here: [____________________________________].

13. Plaintiff's title search and party analysis under §§ 70-29-104 through 70-29-108 is attached as Exhibit C and identifies every required cotenant, future-interest holder, record lienholder, and other person to be joined or addressed through the statutory referee process.

V. ENTITLEMENT TO PARTITION

14. Plaintiff and Defendants cannot agree upon the use, management, or disposition of the Property, and Plaintiff seeks statutory partition.

15. Section 70-29-101 authorizes one or more qualifying cotenants to bring an action for partition according to the parties' respective rights and for sale if partition cannot be made without great prejudice to the owners.

16. Plaintiff is aware of no binding agreement or independently enforceable restriction that bars this action, subject to the following disclosed instruments and defenses: [____________________________________].

VI. MANNER OF PARTITION — IN KIND OR BY SALE

17. ☐ Partition in kind. The Property can be physically divided among the cotenants according to their respective interests without great prejudice to the owners, and Plaintiff requests partition in kind under Mont. Code Ann. § 70-29-202.

18. ☐ Partition by sale. The Property is so situated that partition cannot be made without great prejudice to the owners because [FACTS]: [____________________________________]. Plaintiff alleges and will establish those facts as § 70-29-202 requires and requests a court-ordered sale under the procedure applicable after the Court determines whether Part 4 governs.

VII. ACCOUNTING AMONG COTENANTS

19. Plaintiff requests only compensatory adjustments supported by § 70-29-209 and independently pleaded equitable authority. The asserted items are:

a. ☐ Payments of real property taxes advanced by a cotenant: $[____________];
b. ☐ Mortgage principal, interest, and escrow payments advanced by a cotenant: $[____________];
c. ☐ Insurance premiums advanced by a cotenant: $[____________];
d. ☐ Reasonable and necessary repairs, maintenance, and capital improvements that enhanced the value of the Property: $[____________];
e. ☐ Rents or profits actually collected: $[____________];
f. ☐ Owelty (equalizing payment) necessary to make an in-kind partition just and proportionate to the parties' interests: $[____________];
g. ☐ Other: [____________________________________].

20. For each selected item, Plaintiff states the facts and authority supporting adjustment, including whether the expense benefited all cotenants: [____________________________________]. Section 70-29-209 permits compensation for inequality in an ordered partition and compensatory adjustment according to ordinary principles of equity; this pleading does not presume that every listed expenditure or occupancy claim is recoverable.

VIII. APPOINTMENT OF REFEREES

21. Plaintiff requests that, upon ordering partition, the Court appoint three referees or, with all parties' consent, a single referee under Mont. Code Ann. § 70-29-202. The referees must report as § 70-29-211 requires, and the Court may confirm, change, modify, or set aside the report under § 70-29-212. If Part 4 applies, each referee must also be disinterested, impartial, and not a party or participant under § 70-29-405.

COUNT I — PARTITION UNDER MONT. CODE ANN. § 70-29-101 ET SEQ.

22. Plaintiff incorporates paragraphs 1 through 21 by reference.

23. Plaintiff requests partition of the Property — in kind unless the governing standard for sale is established — together with supported compensatory adjustments, appointment of referees, and division of the Property or net proceeds according to the parties' respective interests.

COUNT II — UNIFORM PARTITION OF HEIRS PROPERTY ACT (MONT. CODE ANN. §§ 70-29-401 TO -420)

24. Plaintiff incorporates paragraphs 1 through 23 by reference.

25. The Court must determine under § 70-29-403 whether the Property is heirs property. Plaintiff alleges that the § 70-29-402(5) definition is satisfied because:

a. The Property is held in tenancy in common;

b. No agreement in a record binding all cotenants governs partition;

c. One or more cotenants acquired title from a relative, living or deceased: [DETAILS]; and

d. At least one 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.

26. If the Court determines that the Property is heirs property, Part 4 governs unless all cotenants otherwise agree in a record. Part 4 supplements Parts 1 through 3 and replaces inconsistent provisions. § 70-29-403.

27. Plaintiff requests the statutory sequence: value determination under § 70-29-410; the buyout process under § 70-29-411 if a cotenant requested sale; the partition alternatives and totality-of-circumstances analysis under §§ 70-29-412 and 70-29-413; and, if sale is ordered, the open-market-sale preference and alternatives under § 70-29-414, with the broker's report under § 70-29-415.

28. ☐ If Plaintiff seeks publication and the Court determines that the Property may be heirs property, Plaintiff will post and maintain the sign required by § 70-29-404 no later than 10 days after that determination.

IX. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that the Court:

A. Determine and adjudge the respective interests of all parties in the Property;

B. Order partition of the Property in kind among the cotenants according to their respective interests if partition can be made without great prejudice to the owners;

C. If partition in kind cannot be made without great prejudice (or where the Uniform Partition of Heirs Property Act applies and a sale is appropriate), order a sale of the Property and a division of the net proceeds according to the parties' respective interests;

D. Appoint three referees (or a single referee by consent) to make the partition or conduct the sale and report to the Court pursuant to Mont. Code Ann. § 70-29-202;

E. Order only those compensatory adjustments established under § 70-29-209 and other independently pleaded authority;

F. Where the Property is heirs property, determine value, afford the cotenant buyout, and apply the partition alternatives and open-market sale procedures of Mont. Code Ann. §§ 70-29-410 to -415;

G. Apportion costs of partition, common-benefit reasonable counsel fees, referee fees, and other disbursements as § 70-29-218 permits, while allocating litigation involving only some parties as the Court directs under that section; and

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

Dated: [__/__/____]

Respectfully submitted,

[____________________________________]
[ATTORNEY NAME]
Montana Bar No.: [__________]
[FIRM NAME]
[Address]
[Phone] | [Email]
Attorney for Plaintiff

PART 2 — FILING, LIS PENDENS, AND SERVICE CHECKLIST

☐ Immediately after filing the complaint in district court, Plaintiff filed a notice of pendency in every county where the Property is situated. The notice states the known parties, object of the action, and property description as § 70-29-109 requires.

☐ The summons is directed to all joint tenants, tenants in common, persons with interests, and record lienholders, and generally to unknown claimants, as § 70-29-110 requires.

☐ Each known defendant will receive the summons and complaint through the current service method approved by Montana counsel and the court.

☐ Publication is requested only after the affidavit required by § 70-29-111 establishes an unknown, out-of-state, or unfindable interested party. The published summons includes a general statement of the action and brief property description.

☐ If § 70-29-107's referee process is used for a record lienholder not made a party, the plaintiff will give the reasonable advance notice required by § 70-29-108.

This checklist is not a certificate that initial service has occurred. Initial summons-and-complaint service must follow the court's current rules and orders.

PART 3 — EXHIBIT INDEX

SOURCES AND REFERENCES

• Mont. Code Ann. Title 70, chapter 29 — Partition of Real Property
• Mont. Code Ann. §§ 70-29-101 through 70-29-111
• Mont. Code Ann. §§ 70-29-201 through 70-29-221
• Mont. Code Ann. Part 4 — Uniform Partition of Heirs Property Act
• Mont. Code Ann. § 25-2-123

END OF MONTANA PARTITION ACTION TEMPLATE