Partition Action Complaint - South Dakota

COMPLAINT FOR PARTITION OF REAL PROPERTY — SOUTH DAKOTA

TABLE OF CONTENTS

1. Caption
2. Nature of the Action
3. Parties and Cotenancy Shares
4. Jurisdiction and Venue
5. The Property and Legal Description
6. Nature and Source of Title
7. Liens and Encumbrances
8. Count I — Entitlement to Partition (S.D.C.L. § 21-45-1)
9. Count II — Partition in Kind or, Alternatively, Partition by Sale
10. Count III — Accounting Among Cotenants
11. Appointment of Referees
12. Prayer for Relief
13. Verification
14. Signature and Service Blocks
15. Certificate of Service
16. South Dakota Practice Notes
17. Sources and References

1. CAPTION

STATE OF SOUTH DAKOTA

IN CIRCUIT COURT

[________________] JUDICIAL CIRCUIT

COUNTY OF [________________]

CIV. NO. [________________________________]

COMPLAINT FOR PARTITION OF REAL PROPERTY

Plaintiff, complaining of Defendants, alleges and states as follows:

2. NATURE OF THE ACTION

2.1. This is an action for the partition of real property co-owned by the parties, brought under S.D.C.L. ch. 21-45.

2.2. Plaintiff and Defendant(s) own the real property described herein (the "Property") as ☐ tenants in common; ☐ joint tenants; ☐ other: [____________________]. The parties are unable to agree upon the use, management, or disposition of the Property, and Plaintiff is entitled as a matter of right to a partition of the Property, in kind if practicable, or otherwise by sale with division of the proceeds.

3. PARTIES AND COTENANCY SHARES

3.1. Plaintiff [PLAINTIFF NAME] is an adult residing in [COUNTY] County, South Dakota, and owns an undivided [____] interest (e.g., 1/2) in the Property.

3.2. Defendant [DEFENDANT 1] is an adult residing in [COUNTY / STATE] and owns an undivided [____] interest in the Property, and may be served at [SERVICE ADDRESS].

3.3. Defendant [DEFENDANT 2] is [an individual / a corporation / an LLC / a trust] and owns or claims an undivided [____] interest in or lien upon the Property.

3.4. Defendants designated "All Unknown Persons Having or Claiming Any Interest in the Property" are persons whose names and interests are unknown to Plaintiff after diligent inquiry and who may claim some right, title, estate, lien, or interest in the Property. They are joined and may be served by publication pursuant to the South Dakota Rules of Civil Procedure.

3.5. The respective interests of all known owners are as follows:

3.6. The interests set forth in the complaint are stated specifically and particularly as required by S.D.C.L. § 21-45-3. The share or quantity of interest of [any party whose interest is unknown, uncertain, or contingent] is alleged as follows: [____________________].

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction over this action and over the Property, which is situated within this judicial circuit.

4.2. Venue is proper in [________________] County, South Dakota, because the Property that is the subject of this action is situated in this county.

5. THE PROPERTY AND LEGAL DESCRIPTION

5.1. The Property is situated in [________________] County, South Dakota, and is commonly known as [STREET ADDRESS, CITY, ZIP].

5.2. The Property is more particularly described as follows:

[INSERT FULL LEGAL DESCRIPTION — lot, block, subdivision, plat reference, or metes and bounds]

5.3. The Property is identified by Parcel / Tax ID No. [____________________] in the records of the [COUNTY] County Director of Equalization / Register of Deeds.

6. NATURE AND SOURCE OF TITLE

6.1. Title to the Property is held by the parties as cotenants. Plaintiff acquired Plaintiff's undivided interest by [Warranty Deed / Quitclaim Deed / inheritance / decree of distribution] dated [__/__/____] and recorded on [__/__/____] as Document No. [____________________] in the Office of the Register of Deeds of [COUNTY] County, South Dakota (Book [____], Page [____]).

6.2. Each cotenant holds an estate of inheritance, for life, or for years in the Property, and is in possession or entitled to possession thereof, such that the Property is subject to partition or sale under S.D.C.L. § 21-45-1.

6.3. ☐ (Heirs / family property — informational.) One or more cotenants acquired title from a relative, and the Property has descended through the family of [ANCESTOR NAME]. South Dakota has not adopted the Uniform Partition of Heirs Property Act; partition therefore proceeds under S.D.C.L. ch. 21-45.

7. LIENS AND ENCUMBRANCES

7.1. The Property is subject to the following liens, mortgages, or encumbrances of record, the holders of which are joined as Defendants to the extent their interests appear of record:

7.2. Plaintiff requests that the Court ascertain and determine the validity, priority, and amount of all liens and encumbrances and provide for their satisfaction out of the share or proceeds of the cotenant(s) whose interest is so encumbered.

8. COUNT I — ENTITLEMENT TO PARTITION (S.D.C.L. § 21-45-1)

8.1. Plaintiff incorporates the foregoing paragraphs as though fully set forth.

8.2. Under S.D.C.L. § 21-45-1, a cotenant of real property may maintain an action for the partition of the Property according to the respective rights of the persons interested therein, and for a sale of the Property or any part thereof if it appears that a partition cannot be made without great prejudice to the owners.

8.3. Plaintiff is a cotenant of the Property and has an absolute right to partition. No agreement among the parties bars or postpones the right to partition, and no facts exist that would defeat that right.

8.4. Plaintiff has demanded that Defendant(s) voluntarily partition or sell and divide the Property, and the parties have been unable to agree, making this action necessary.

9. COUNT II — PARTITION IN KIND OR, ALTERNATIVELY, PARTITION BY SALE

9.1. Plaintiff incorporates the foregoing paragraphs as though fully set forth.

9.2. Partition in kind (preferred). Under S.D.C.L. § 21-45-15, upon requisite proof the Court must order partition of the Property in kind according to the respective rights of the parties as ascertained by the Court. Plaintiff alleges that the Property ☐ can be / ☐ cannot be physically divided in kind without great prejudice to the owners.

9.3. Owelty. If an equal division in kind cannot be made, the Court may order owelty — a money payment by the cotenant receiving the more valuable portion to equalize the partition among the parties.

9.4. Partition by sale (alternative). Pursuant to S.D.C.L. § 21-45-28, if it appears that partition in kind cannot be made without great prejudice to the owners, the Court may order the Property, or any part thereof, sold and the proceeds divided among the parties according to their respective interests. Plaintiff alleges that a sale is necessary because: ☐ the Property is a single residence or improvement not susceptible to physical division; ☐ physical division would materially impair its value or the value of the parties' respective shares; ☐ the number of owners and the configuration of the Property make division impracticable; ☐ other: [____________________].

9.5. Any sale shall be conducted by the referees in the manner provided by S.D.C.L. ch. 21-45, subject to confirmation by the Court, with the net proceeds distributed first to satisfy valid liens and the costs and expenses of the action, and the balance to the parties according to their respective interests as adjusted by the accounting in Count III.

10. COUNT III — ACCOUNTING AMONG COTENANTS

10.1. Plaintiff incorporates the foregoing paragraphs as though fully set forth.

10.2. In connection with the partition, Plaintiff requests a full accounting and adjustment of the equities among the cotenants, so that each cotenant equally shares both the burdens and the benefits of ownership. Plaintiff seeks credits and charges including the following:

• ☐ Contributions / disbursements. Sums advanced by a cotenant beyond that cotenant's proportionate share for mortgage principal and interest, property taxes, hazard insurance, necessary repairs, and preservation of the Property, in the approximate amount of $[__________];
• ☐ Improvements. The value or cost of necessary or value-enhancing improvements made by a cotenant, to the extent they increased the value of the Property;
• ☐ Rents and profits / value of use. Rents and profits actually received by a cotenant from the Property, and the reasonable rental value of the Property where a cotenant has been in exclusive possession amounting to an ouster of the other cotenant(s);
• ☐ Waste or damage. Diminution in value caused by waste, neglect, or damage attributable to a cotenant;
• ☐ Owelty as alleged in Paragraph 9.3.

10.3. Plaintiff requests that the net result of the accounting be charged against or credited to the respective shares of the cotenants in the Property or in the proceeds of any sale.

11. APPOINTMENT OF REFEREES

11.1. Plaintiff requests that the Court appoint three (3) disinterested referees pursuant to S.D.C.L. § 21-45-15 to make partition in kind, or, unless the parties file a written consent that one (1) referee be appointed, in which case one referee shall perform all duties otherwise required of three.

11.2. In the event of a sale, the referees shall conduct the sale, execute conveyances to the purchaser, and report their proceedings to the Court for confirmation as provided in S.D.C.L. ch. 21-45.

12. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court:

A. ☐ Determine and declare the respective rights, shares, and interests of all parties in and to the Property, and the validity, priority, and amount of all liens and encumbrances;

B. ☐ Order that the Property be partitioned in kind among the parties according to their respective interests, with owelty as necessary to equalize the partition;

C. ☐ If partition in kind cannot be made without great prejudice to the owners, order that the Property be sold and the proceeds divided among the parties according to their respective interests;

D. ☐ Appoint three (3) referees (or one upon written consent of the parties) pursuant to S.D.C.L. § 21-45-15 to make the partition or conduct the sale and to report to the Court;

E. ☐ Order a full accounting among the cotenants and adjust the equities for contributions, improvements, rents, ouster, waste, and owelty as pleaded in Count III;

F. ☐ Order that the costs and disbursements of this action, including referees' fees and reasonable attorneys' fees to the extent allowed by law, be apportioned among the parties in proportion to their respective interests or paid out of the proceeds of sale;

G. ☐ Confirm any sale and direct execution and delivery of referees' deeds to the purchaser(s); and

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

13. VERIFICATION

STATE OF SOUTH DAKOTA )
COUNTY OF [________________] ) ss.

[PLAINTIFF NAME], being first duly sworn, deposes and states: I am the Plaintiff in the above-entitled action. I have read the foregoing Complaint for Partition and know the contents thereof, and the same is true to my own knowledge, except as to those matters stated on information and belief, and as to those matters I believe them to be true.

[________________________________]
[PLAINTIFF NAME]

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

[________________________________]
Notary Public, State of South Dakota
My Commission Expires: [__/__/____]

14. SIGNATURE AND SERVICE BLOCKS

Dated this [____] day of [________________], 20[____].

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME]

Attorney for Plaintiff

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

15. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [________________], 20[____], a true and correct copy of the foregoing COMPLAINT FOR PARTITION OF REAL PROPERTY was served upon the following parties by [personal service / certified mail, return receipt requested / electronic service through the Odyssey system / publication]:

[SERVICE LIST WITH NAMES AND ADDRESSES]

[________________________________]
[ATTORNEY NAME]

16. SOUTH DAKOTA PRACTICE NOTES

• Governing chapter. Partition of real estate is governed by S.D.C.L. ch. 21-45. Plaintiff brings the action under § 21-45-1; the complaint contents (specific statement of interests) follow § 21-45-3.
• Referees. Under § 21-45-15 the Court must appoint three referees for a partition in kind unless the parties file written consent for one. Referees value, divide, or sell, and report to the Court for confirmation.
• Sale standard. A sale under § 21-45-28 is ordered when partition in kind cannot be made without great prejudice to the owners. Partition in kind remains the statutory default; plead facts (e.g., a single dwelling, indivisible improvements) supporting a sale where one is sought.
• No UPHPA in South Dakota. South Dakota has not enacted the Uniform Partition of Heirs Property Act. Cotenants do not have the UPHPA notice, appraisal, cotenant-buyout, or open-market-sale protections; the heirs-property allegations above are informational only.
• Owelty and accounting. South Dakota courts equalize partitions through owelty and adjust the equities among cotenants for contributions, rents, and the reasonable rental value where one cotenant has ousted the other from possession.
• Unknown parties and lienholders. Join all persons with a recorded interest or lien, and join unknown claimants who may be served by publication under the South Dakota Rules of Civil Procedure (S.D.C.L. ch. 15-6). A lis pendens should be recorded with the Register of Deeds for each county in which the Property lies.
• Confirm citations. Verify all section numbers and any amendments on the South Dakota Legislature website before filing.

17. SOURCES AND REFERENCES

• S.D.C.L. ch. 21-45 (Partition and Sale of Real Estate) — https://sdlegislature.gov/Statutes/21-45
• S.D.C.L. § 21-45-1 (Property subject to partition or sale)
• S.D.C.L. § 21-45-3 (Complaint — contents)
• S.D.C.L. § 21-45-15 (Order directing partition — referees) — https://law.justia.com/codes/south-dakota/title-21/chapter-45/section-21-45-15/
• S.D.C.L. § 21-45-28 (Sale when partition in kind would prejudice owners)
• S.D.C.L. ch. 15-6 (South Dakota Rules of Civil Procedure)
• South Dakota Unified Judicial System — https://ujs.sd.gov/

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