Partition Action Complaint - Utah

COMPLAINT FOR PARTITION OF REAL PROPERTY — UTAH

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 (§ 78B-6-1201)
9. Count II — Partition in Kind or, Alternatively, Sale
10. Count III — Heirs' Property / UPHPA (§§ 78B-6-1270 et seq.)
11. Count IV — Accounting Among Cotenants
12. Lis Pendens (§ 78B-6-1204)
13. Appointment of Referee
14. Prayer for Relief
15. Verification
16. Signature and Service Blocks
17. Certificate of Service
18. Utah Practice Notes
19. Sources and References

1. CAPTION

IN THE [____] JUDICIAL DISTRICT COURT

IN AND FOR [________________] COUNTY, STATE OF UTAH

[________________] DEPARTMENT

COMPLAINT FOR PARTITION OF REAL PROPERTY

Case No. [________________________________]

Judge [________________________________]

Tier [____] (damages not the basis; non-monetary real-property relief)

Plaintiff complains of Defendants and alleges 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 Utah Code § 78B-6-1201 et seq.

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 or disposition of the Property, and Plaintiff is entitled to partition for the benefit of each tenant, by sale if the partition cannot be made without prejudice to the owners.

3. PARTIES AND COTENANCY SHARES

3.1. Plaintiff [PLAINTIFF NAME] is a resident of [COUNTY] County, Utah, and owns an undivided [____] interest in the Property.

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

3.3. Defendant [DEFENDANT 2] is [an individual / entity] owning or claiming an undivided [____] interest in or recorded lien upon the Property.

3.4. Pursuant to Utah Code § 78B-6-1202, the interests of all persons in the Property, whether known or unknown, are set forth specifically and particularly so far as known to Plaintiff. Any party, or share or interest, that is unknown, uncertain, or contingent is alleged as follows: [____________________].

3.5. Pursuant to Utah Code § 78B-6-1203, only persons who have a recorded conveyance of, or claim a recorded lien on, the Property are required to be made parties. Defendants designated "All Unknown Persons Claiming Any Interest" may be served by publication under Utah Code § 78B-6-1206 and the Utah Rules of Civil Procedure.

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

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction over partition actions affecting real property situated in Utah.

4.2. Venue is proper in [________________] County, Utah, because the Property is situated in this county.

5. THE PROPERTY AND LEGAL DESCRIPTION

5.1. The Property is situated in [________________] County, Utah, 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 of record, or metes and bounds]

5.3. The Property is identified by Parcel / Serial No. [____________________] in the records of the [COUNTY] County Recorder.

6. NATURE AND SOURCE OF TITLE

6.1. Plaintiff acquired Plaintiff's undivided interest by [Warranty Deed / Special Warranty Deed / Quitclaim Deed / inheritance / decree of distribution] dated [__/__/____] and recorded [__/__/____] as Entry No. [____________________], Book [____], Page [____], in the Office of the [COUNTY] County Recorder, Utah.

6.2. Plaintiff is a joint tenant or tenant in common with the other parties and may bring this action to partition the Property for the benefit of each tenant. Utah Code § 78B-6-1201.

7. LIENS AND ENCUMBRANCES

7.1. The Property is subject to the following recorded liens, trust deeds, judgments, or other encumbrances, the holders of which are joined as parties to the extent their interests appear of record:

7.2. Pursuant to Utah Code § 78B-6-1207, each defendant claiming a lien shall set forth the original amount, date, and unpaid balance of the lien. Plaintiff requests that the Court ascertain the validity, priority, and amount of all liens and provide for their satisfaction.

8. COUNT I — ENTITLEMENT TO PARTITION (§ 78B-6-1201)

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

8.2. Under Utah Code § 78B-6-1201, a person who is a joint tenant or tenant in common with another of real property may bring an action to partition the Property for the benefit of each tenant. An action for partition may require the sale of the Property if it appears that partition cannot be made without prejudice to the owners.

8.3. Plaintiff is such a cotenant and is entitled to partition. The parties have been unable to agree upon a voluntary division or sale, making this action necessary.

8.4. Pursuant to Utah Code § 78B-6-1208, the rights of all parties may be put in issue, tried, and determined in this action; and if the Court determines a sale is necessary, title shall be ascertained to the satisfaction of the Court before a judgment of sale is made.

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

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

9.2. Partition in kind (preferred). Plaintiff alleges that the Property ☐ can be / ☐ cannot be physically divided in kind among the cotenants according to their respective interests without 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.

9.4. Sale (alternative). Pursuant to Utah Code § 78B-6-1201, if it appears that partition cannot be made without prejudice to the owners, the Court may order the Property sold and the proceeds divided among the parties according to their respective interests. Plaintiff alleges that a sale is appropriate because: ☐ the Property is a single residence or improvement not susceptible to physical division; ☐ partition in kind would materially impair the value of the Property or the parties' shares; ☐ the configuration and number of owners make division impracticable; ☐ other: [____________________].

9.5. The net proceeds of any sale shall be applied first to valid liens and the costs of the action, with the balance distributed to the parties according to their respective interests as adjusted by the accounting in Count IV.

10. COUNT III — HEIRS' PROPERTY / UPHPA (§§ 78B-6-1270 et seq.)

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

10.2. The Property ☐ is / ☐ may be "heirs' property" within the meaning of Utah Code § 78B-6-1270 because it is held in tenancy in common with no binding partition agreement, one or more cotenants acquired title from a relative ([ANCESTOR NAME]), and ☐ 20% or more of the interests are held by relatives; ☐ 20% or more of the interests are held by an individual who acquired title from a relative; or ☐ 20% or more of the cotenants are relatives.

10.3. Pursuant to Utah Code § 78B-6-1271, in an action to partition real property under Part 12 the Court shall determine whether the Property is heirs' property; if so, the Property shall be partitioned under Part 12a (the Uniform Partition of Heirs' Property Act) unless all cotenants otherwise agree in a record. Part 12a supplements Part 12 and replaces inconsistent provisions.

10.4. If the Court determines the Property is heirs' property, Plaintiff requests that the Court proceed under the UPHPA, including: (a) a court-ordered determination of value by appraisal (§ 78B-6-1274); (b) the cotenant buyout, allowing nonrequesting cotenants to purchase the interests of cotenants requesting a sale; (c) consideration of the statutory factors favoring partition in kind; and (d) if a sale is ordered, an open-market sale, sealed bids, or auction (§ 78B-6-1278), rather than a forced low-price judicial sale.

11. COUNT IV — ACCOUNTING AMONG COTENANTS

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

11.2. Plaintiff requests a full accounting and adjustment of the equities among the cotenants so that each equally shares the burdens and benefits of ownership, including the following credits and charges:

• ☐ Contributions / disbursements. Sums advanced by a cotenant beyond that cotenant's share for mortgage or trust-deed principal and interest, property taxes, insurance, and necessary repairs and preservation, in the approximate amount of $[__________];
• ☐ Improvements. The enhanced value attributable to necessary or value-enhancing improvements made by a cotenant;
• ☐ Rents and value of use / ouster. Rents and profits actually received by a cotenant, 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 attributable to a cotenant;
• ☐ Owelty as alleged above.

11.3. 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.

12. LIS PENDENS (§ 78B-6-1204)

12.1. Pursuant to Utah Code § 78B-6-1204, Plaintiff shall file a notice of the pendency of this action (lis pendens) with the Recorder of each county in which the Property is situated, containing a copy of this Complaint or a notice stating the names of all known parties, the object of the action, and a description of the Property affected. Once filed, all persons having an interest in the Property are deemed to have notice of the pendency of this action.

13. APPOINTMENT OF REFEREE

13.1. Plaintiff requests that the Court appoint a disinterested referee (or referees) to partition the Property in kind, or, if a sale is ordered, to conduct the sale, execute conveyances to the purchaser, and report to the Court for confirmation, as provided in Utah Code Title 78B, Chapter 6, Part 12.

13.2. If the Court determines the Property is heirs' property, the valuation, buyout, and any sale shall proceed under Part 12a (UPHPA, §§ 78B-6-1270 et seq.).

14. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court:

A. ☐ Determine the respective rights, shares, and interests of all parties in the Property, and the validity, priority, and amount of all liens (§ 78B-6-1208);

B. ☐ Order partition of the Property in kind among the parties for the benefit of each tenant, with owelty as necessary to equalize the partition;

C. ☐ If partition cannot be made without prejudice to the owners, order a sale of the Property and division of the proceeds according to the parties' respective interests;

D. ☐ Determine whether the Property is heirs' property and, if so, partition the Property under the Uniform Partition of Heirs' Property Act (Part 12a, §§ 78B-6-1270 et seq.), including a determination of value, the cotenant-buyout option, and any open-market sale;

E. ☐ Appoint a referee to effect the partition or conduct the sale and report to the Court;

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

G. ☐ Apportion the costs of this action, including referee's fees and reasonable attorney fees to the extent allowed by law, among the parties in proportion to their interests or out of the proceeds of sale;

H. ☐ Confirm any sale and direct execution of conveyances to the purchaser(s); and

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

15. VERIFICATION

STATE OF UTAH )
COUNTY OF [________________] ) ss.

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

[________________________________]
[PLAINTIFF NAME]

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

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

16. SIGNATURE AND SERVICE BLOCKS

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

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Utah State Bar No. [____________]

Attorney for Plaintiff

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

17. 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 by [the Utah courts' electronic-filing system / U.S. Mail, postage prepaid / personal service / publication]:

[SERVICE LIST WITH NAMES AND ADDRESSES]

[________________________________]
[ATTORNEY NAME]

18. UTAH PRACTICE NOTES

• Governing parts. Partition of real property is governed by Utah Code Title 78B, Chapter 6, Part 12 (§§ 78B-6-1201 et seq.). The Uniform Partition of Heirs' Property Act is in Part 12a (§§ 78B-6-1270 to 78B-6-1278).
• Right and standard. A joint tenant or tenant in common may bring partition for the benefit of each tenant; a sale is available only if partition cannot be made without prejudice to the owners (§ 78B-6-1201). Partition in kind remains the default; plead facts supporting a sale where one is sought.
• Pleading the interests. The complaint must set forth the interests of all persons, known or unknown, specifically and particularly (§ 78B-6-1202). Only recorded interest/lien holders are necessary parties (§ 78B-6-1203). Defendants asserting liens must detail them (§ 78B-6-1207).
• Lis pendens. A notice of pendency must be recorded with the recorder of each county where the Property lies (§ 78B-6-1204).
• UPHPA (in force). Utah adopted the UPHPA effective May 4, 2022 (Part 12a). The court must determine whether the property is "heirs' property" (§ 78B-6-1271); if so, it must be partitioned under Part 12a unless all cotenants agree otherwise in a record. The Act adds notice, a court-ordered appraisal/determination of value (§ 78B-6-1274), a cotenant buyout, a strengthened preference for partition in kind, and open-market sale procedures (§ 78B-6-1278).
• Heirs'-property definition. Tenancy in common, no binding partition agreement, a cotenant who took title from a relative, and a 20% relative/related-interest threshold (§ 78B-6-1270).
• Confirm citations. Verify current section numbers and any amendments on le.utah.gov before filing.

19. SOURCES AND REFERENCES

• Utah Code § 78B-6-1201 (Partition by cotenants) — https://le.utah.gov/xcode/Title78B/Chapter6/78B-6-S1201.html
• Utah Code Title 78B, Chapter 6, Part 12 (Partition) — https://law.justia.com/codes/utah/title-78b/chapter-6/part-12/
• Utah Code § 78B-6-1270 (UPHPA — Definitions) — https://law.justia.com/codes/utah/title-78b/chapter-6/part-12a/section-1270/
• Utah Code § 78B-6-1271 (UPHPA — Applicability) — https://le.utah.gov/xcode/Title78B/Chapter6/78B-6-S1271.html
• Utah Code Title 78B, Chapter 6, Part 12a (Uniform Partition of Heirs' Property Act, eff. 5/4/2022)
• Utah Rules of Civil Procedure
• Utah State Courts — https://www.utcourts.gov/

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