Partition Action Complaint - New Mexico

VERIFIED COMPLAINT FOR PARTITION OF REAL PROPERTY AND NOTICE OF LIS PENDENS

STATE OF NEW MEXICO

COUNTY OF [____________________]

[____________________] JUDICIAL DISTRICT COURT

VERIFIED COMPLAINT FOR PARTITION

COMES NOW Plaintiff, [PLAINTIFF NAME], by and through undersigned counsel, and for this Complaint for Partition of real property under NMSA 1978, §§ 42-5-1 et seq. (and, if applicable, the Uniform Partition of Heirs Property Act, NMSA 1978, §§ 42-5A-1 et seq.), alleges as follows:

I. PARTIES, JURISDICTION, AND VENUE

1. Plaintiff [PLAINTIFF NAME] is a [resident of [____________] County, New Mexico / entity organized under the laws of [____________]], with [residence / principal place of business] at [________________________________].

2. Defendant [COTENANT NAME] is, upon information and belief, [a resident of [____________] / entity] whose last known address is [________________________________], and is a cotenant of the Subject Property.

3. The following persons are joined as Defendants because each is a cotenant of, or claims or may claim an interest, lien, or estate in, the Subject Property:

☐ [COTENANT/PARTY NAME] — [interest: ____________]
☐ [COTENANT/PARTY NAME] — [interest: ____________]
☐ Holder(s) of any mortgage, deed of trust, judgment lien, or other lien of record: [____________]
☐ [Lessee(s) / tenant(s) in possession]: [____________]

4. The unknown Defendants — including the unknown heirs, devisees, successors, assigns, and spouses of [____________], and all unknown persons claiming any right, title, or interest in the Subject Property — are joined and may be served by publication pursuant to NMSA 1978, § 42-5-3 and Rule 1-004 NMRA.

5. This Court has subject-matter jurisdiction over this action for partition of real property under NMSA 1978, § 42-5-1, which authorizes any one or more persons interested in lands owned in joint tenancy, tenancy in common, or coparcenary — whether in possession or not — to seek a division and partition.

6. Venue is proper in this County because the Subject Property is located in this County.

II. THE SUBJECT PROPERTY

7. The real property that is the subject of this action (the "Subject Property") is located at [________________________________], [____________] County, New Mexico, and is more particularly described as:

[INSERT FULL LEGAL DESCRIPTION]

Uniform Property Code / Parcel No.: [____________]
Recording Reference: Book/Instrument No. [____________], records of the [____________] County Clerk
Commonly Known As: [________________________________]

III. THE COTENANCY AND RESPECTIVE INTERESTS

8. The Subject Property is owned by the parties as [☐ tenants in common / ☐ joint tenants / ☐ coparceners], with respective undivided fractional interests as follows:

9. Plaintiff's interest derives from:

☐ Warranty Deed / Special Warranty Deed / Quitclaim Deed dated [__/__/____], recorded [__/__/____], Book/Instrument No. [____________].
☐ Devise under the Will of [____________], [Probate/Estate] No. [____________].
☐ Intestate succession from [____________], who died [__/__/____].
☐ Other: [________________________________].

10. No agreement in a record binding all of the cotenants governs the partition of the Subject Property, and no waiver of the right to partition is in effect.

IV. ENTITLEMENT TO PARTITION

11. Under NMSA 1978, § 42-5-1, Plaintiff, as a cotenant, is entitled to partition of the Subject Property according to the respective rights of the parties interested therein.

12. A cotenant is entitled to partition as a matter of right, subject only to recognized equitable limitations. The parties cannot agree upon a voluntary division, sale, or other disposition of the Subject Property, and partition by this Court is necessary to protect Plaintiff's interest.

V. HEIRS PROPERTY DETERMINATION (UPHPA — NMSA 1978, §§ 42-5A-1 et seq.)

13. The Court must determine, under NMSA 1978, § 42-5A-3, whether the Subject Property is "heirs property." Plaintiff alleges as follows (check the applicable allegation):

☐ The Subject Property is heirs property because it is held in tenancy in common and, as of the filing of this action: (a) there is no agreement in a record binding all cotenants governing partition; (b) one or more cotenants acquired title from a relative; and (c) one of the family-interest thresholds of NMSA 1978, § 42-5A-2 is met. If the Court so finds, the property shall be partitioned under the Uniform Partition of Heirs Property Act (appraisal/determination of value, cotenant buyout right, and partition-in-kind/open-market-sale procedures) unless all cotenants otherwise agree in a record.

☐ The Subject Property is not heirs property, and partition is governed by the general partition statute, NMSA 1978, §§ 42-5-1 et seq.

14. If Plaintiff seeks notice by publication and the Court determines that the Subject Property may be heirs property, Plaintiff will, no later than ten days after that determination, post and maintain a conspicuous sign on the Subject Property while this action is pending. The sign will state that this action has commenced and identify the Court's name and address and the property's common designation, together with any additional party names the Court requires, as provided by NMSA 1978, § 42-5A-4(B).

VI. METHOD OF PARTITION — IN KIND OR BY SALE

15. Partition in kind. Plaintiff requests that, if the Subject Property can be divided among the cotenants without great prejudice to the owners, the Court appoint three disinterested commissioners under NMSA 1978, § 42-5-6 to go upon the premises and make actual partition by metes and bounds, assigning to each cotenant a share proportionate to that cotenant's interest, and to report to the Court.

16. Partition by sale. In the alternative, if the commissioners find that the Subject Property is so circumstanced that a partition cannot be made without manifest prejudice to the owners, Plaintiff requests that the commissioners appraise the Subject Property at its cash value (deducting liens and encumbrances) and report to the Court, and that the Court order a sale under NMSA 1978, § 42-5-7 and distribute the net proceeds among the cotenants according to their respective interests, subject to the accounting set forth below.

☐ Plaintiff alleges the Subject Property cannot be divided without great prejudice to the owners because: [residential lot/single structure / indivisible improvements / disproportionate values / other: ____________].

VII. ACCOUNTING AMONG COTENANTS

17. Plaintiff requests that, before or in connection with the final division or distribution, the Court take an accounting among the cotenants and adjust their respective shares (or charge owelty) to reflect the following equitable claims:

18. ☐ One or more cotenants has been in sole/exclusive possession of the Subject Property and [☐ has excluded Plaintiff (ouster) / ☐ has received rents from third parties], for which an offset or charge against that cotenant's share is sought.

19. The New Mexico trial court, in making any partition, has authority to determine the equities as between the parties and to make the partition or distribution conform to those equities.

VIII. NOTICE OF LIS PENDENS

20. Contemporaneously with the filing of this Complaint, Plaintiff records a Notice of Lis Pendens in the office of the [____________] County Clerk pursuant to NMSA 1978, § 38-1-14, giving constructive notice of the pendency of this action affecting title to the Subject Property.

IX. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that the Court:

A. Determine and adjudge the respective rights, titles, and undivided fractional interests of all parties in the Subject Property;

B. Determine under NMSA 1978, § 42-5A-3 whether the Subject Property is heirs property and, if so, order that partition proceed under the Uniform Partition of Heirs Property Act;

C. Order partition of the Subject Property in kind under NMSA 1978, §§ 42-5-1 and 42-5-6 if it can be made without great/manifest prejudice to the owners, appointing three disinterested commissioners to make the partition and report;

D. Alternatively, if partition in kind cannot be made without manifest prejudice to the owners, order an appraisal and a sale of the Subject Property under NMSA 1978, § 42-5-7 and distribute the net proceeds among the cotenants according to their respective interests;

E. Take an accounting among the cotenants and adjust the shares, charge owelty, or apply offsets as set forth above to reflect contributions, rents, ouster, waste, and improvements;

F. Allocate the costs of partition among the cotenants and award reasonable attorney fees as the Court deems just and equitable under NMSA 1978, § 42-5-8;

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

This the [____] day of [____________], 20[____].

_________________________________
[ATTORNEY NAME]
N.M. Bar No. [____________]
[FIRM NAME]
[ADDRESS]
[CITY, STATE, ZIP]
Telephone: [____________]
Email: [____________]
Attorney for Plaintiff

VERIFICATION

STATE OF NEW MEXICO )
                 ) ss.
COUNTY OF [____________] )

[PLAINTIFF NAME], being first duly sworn, deposes and says: that [he/she/the affiant] is the Plaintiff in the foregoing action; that [he/she] has read the foregoing Verified Complaint for Partition; and that the matters stated therein are true of [his/her] own knowledge, except as to those matters stated on information and belief, and as to those matters [he/she] believes them to be true.

_________________________________
[PLAINTIFF NAME]

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

_________________________________
Notary Public
My commission expires: [__/__/____]

[NOTARY SEAL]

NOTICE OF LIS PENDENS

NMSA 1978, § 38-1-14

NOTICE IS HEREBY GIVEN that the above-captioned action for partition of real property has been commenced and is pending in the [____________] Judicial District Court, County of [____________], State of New Mexico, No. [____________], affecting the title to and possession of the following described real property:

[INSERT FULL LEGAL DESCRIPTION]

Parcel No.: [____________]
Common Address: [________________________________]

The object of the action is the partition of the above-described real property among its cotenants, by division in kind or by sale and distribution of proceeds, together with an accounting and related relief. From the time of recording this Notice, all persons are deemed to have notice of the pendency of this action.

This the [____] day of [____________], 20[____].

_________________________________
[ATTORNEY NAME], Attorney for Plaintiff

RECORD WITH THE [____________] COUNTY CLERK.

SOURCES AND REFERENCES

• NMSA 1978, § 42-5-1 (complaint; prayer; sale where partition causes great prejudice)
• NMSA 1978, § 42-5-2 (parties); § 42-5-3 (unknown persons); § 42-5-4 (intervention); § 42-5-5 (decree)
• NMSA 1978, § 42-5-6 (three disinterested commissioners; oath; report)
• NMSA 1978, § 42-5-7 (appraisal; report; contest; sale; minimum-price rules)
• NMSA 1978, § 42-5-8 (allocation of costs; discretionary attorney fees)
• NMSA 1978, § 42-5-9 (death of party does not abate suit)
• NMSA 1978, Chapter 42 — current official compilation (§§ 42-5A-1 to 42-5A-13, including § 42-5A-4 posting requirements)
• NMSA 1978, § 38-1-14 (lis pendens)
• Rule 1-004 NMRA (service of process); Rule 1-008 NMRA (pleading)
• Sims v. Sims, 1996-NMSC-078, 122 N.M. 618 (partition powers; pooling of interests)
• Prude v. Lewis, 1967-NMSC-174, 78 N.M. 256 (court determines equities between parties; rights determined before commissioners act)
• Martinez v. Martinez, 1982-NMSC-097, 98 N.M. 535 (partition is a matter of right, subject to equitable limits)

DISCLAIMER: This template is provided for informational purposes only and does not constitute legal advice or create an attorney-client relationship. Statutory citations and procedures should be independently verified against the current New Mexico Statutes and Rules of Civil Procedure. Consult a licensed New Mexico attorney before filing.