Partition Action Complaint - Vermont

COMPLAINT FOR PARTITION OF REAL ESTATE — VERMONT

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 (§ 5161)
9. Count II — Partition in Kind by Commissioners (§§ 5169, 5171)
10. Count III — Assignment to One Party or Sale (§§ 5174-5177)
11. Count IV — Accounting Among Cotenants (§ 5180)
12. Appointment of Commissioners (§ 5169)
13. Prayer for Relief
14. Verification
15. Signature and Service Blocks
16. Certificate of Service
17. Vermont Practice Notes
18. Sources and References

1. CAPTION

STATE OF VERMONT

SUPERIOR COURT

[________________] UNIT — CIVIL DIVISION

DOCKET NO. [________________________________]

COMPLAINT FOR PARTITION OF REAL ESTATE

Plaintiff, complaining of Defendants, alleges as follows:

2. NATURE OF THE ACTION

2.1. This is an action for the partition of real estate co-owned by the parties, brought under 12 V.S.A. ch. 179 (§§ 5161-5188).

2.2. Plaintiff and Defendant(s) hold the real estate described herein (the "Property") with one another as ☐ joint tenants; ☐ tenants in common; ☐ coparceners. The parties cannot agree upon the use or disposition of the Property, and Plaintiff is entitled to partition thereof — by division in kind through commissioners, or, if the Property cannot be divided without great inconvenience, by assignment to one party on payment or by sale.

3. PARTIES AND COTENANCY SHARES

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

3.2. Defendant [DEFENDANT 1] is a resident of [TOWN / 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 lien upon the Property.

3.4. Defendants designated "All Unknown Persons Claiming Any Interest" are persons whose names and interests are unknown to Plaintiff after diligent inquiry and who may be served by publication under the Vermont Rules of Civil Procedure.

3.5. As required by 12 V.S.A. § 5163, the title by which the Property is held and the names of the several owners, so far as known, are as follows:

4. JURISDICTION AND VENUE

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

4.2. Pursuant to 12 V.S.A. § 5163, this action is properly brought in the Superior Court of [________________] County (the [________________] Unit), where the Property or a part thereof is situated.

5. THE PROPERTY AND LEGAL DESCRIPTION

5.1. The Property is situated in the Town of [________________], [COUNTY] County, Vermont, and is commonly known as [STREET ADDRESS, ZIP].

5.2. As required by 12 V.S.A. § 5163, a particular description of the premises is as follows:

[INSERT FULL LEGAL DESCRIPTION — reference to deed, survey, or metes and bounds]

5.3. The Property is identified by Parcel ID No. [____________________] in the records of the Town of [________________] and the [________________] Town Land Records.

6. NATURE AND SOURCE OF TITLE

6.1. Plaintiff acquired Plaintiff's undivided interest by [Warranty Deed / Quitclaim Deed / inheritance / decree] dated [__/__/____] and recorded [__/__/____] in Book [____], Page [____] of the [________________] Town Land Records, Vermont.

6.2. Plaintiff holds the Property with the other parties as joint tenants, tenants in common, or coparceners, and is therefore entitled to partition under 12 V.S.A. § 5161.

7. LIENS AND ENCUMBRANCES

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

7.2. Plaintiff requests that the Court ascertain the validity, priority, and amount of all liens and provide for their satisfaction out of the encumbered cotenant's share or the proceeds of any sale.

8. COUNT I — ENTITLEMENT TO PARTITION (§ 5161)

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

8.2. Under 12 V.S.A. § 5161, a person having or holding real estate with others, as joint tenants, tenants in common, or coparceners, may have partition thereof.

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.

9. COUNT II — PARTITION IN KIND BY COMMISSIONERS (§§ 5169, 5171)

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

9.2. Partition in kind is the statutory default. Pursuant to 12 V.S.A. § 5169, when the issue is determined in favor of the plaintiff, or upon default, the Court shall render judgment that partition be made and shall appoint three disinterested residents of the county as commissioners to make partition of the estate and set off each share according to the parties' respective titles. The parties may, with the Court's approval, waive the use of commissioners and have all matters decided by the Court at a bench trial.

9.3. Pursuant to 12 V.S.A. § 5171, the commissioners shall give notice to each interested party, be sworn, and make partition by dividing and setting out to each owner that owner's share by metes and bounds; their report and the Court's judgment are recorded in the town land records (§§ 5172-5173).

9.4. Plaintiff alleges that the Property ☐ can be / ☐ cannot be divided in kind without great inconvenience to the parties interested.

10. COUNT III — ASSIGNMENT TO ONE PARTY OR SALE (§§ 5174-5177)

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

10.2. Assignment. Pursuant to 12 V.S.A. § 5174, when it appears that the Property, or a portion thereof, cannot be divided without great inconvenience to the parties interested, the Court may order it assigned to one of the parties, provided that party pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable.

10.3. Sale. Pursuant to 12 V.S.A. § 5175, if no party interested will take such assignment and pay such sum, the Court shall order the commissioners to sell the Property at public or private sale and (§ 5176) execute conveyances to the purchaser, which shall bar the owners and persons claiming under them.

10.4. Proceeds. Pursuant to 12 V.S.A. § 5177, the proceeds of any sale shall be disposed of and distributed among the parties according to their respective interests, after payment of valid liens and the costs and expenses of the action.

10.5. Plaintiff alleges that assignment or sale is appropriate because: ☐ the Property is a single residence or improvement not susceptible to physical division; ☐ division in kind would cause great inconvenience to the parties; ☐ the configuration and number of owners make division impracticable; ☐ other: [____________________].

11. COUNT IV — ACCOUNTING AMONG COTENANTS (§ 5180)

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

11.2. Consistent with the goal that each cotenant equally share both the burdens and the benefits of land ownership, and with 12 V.S.A. § 5180 (pay for improvements), Plaintiff requests a full accounting and adjustment of the equities among the cotenants, including the following credits and charges:

• ☐ Contributions / disbursements. Sums advanced by a cotenant beyond that cotenant's share for mortgage principal and interest, property taxes, insurance, and necessary repairs and preservation, in the approximate amount of $[__________];
• ☐ Improvements. The value or cost of improvements made by a cotenant, as provided in 12 V.S.A. § 5180, to the extent they enhanced the value of the Property;
• ☐ 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 / equalizing payment under § 5174 where the Property is assigned to one party.

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 or assignment.

12. APPOINTMENT OF COMMISSIONERS (§ 5169)

12.1. Plaintiff requests that the Court appoint three (3) disinterested residents of the county as commissioners pursuant to 12 V.S.A. § 5169 to make partition in kind, set off each share by metes and bounds, and report to the Court; or, in the alternative, to effect an assignment under § 5174 or a sale under §§ 5175-5176.

12.2. ☐ Alternatively, the parties, with the approval of the Court, waive the use of commissioners and request that all matters be decided by the Court at a bench trial pursuant to 12 V.S.A. § 5169(b).

13. 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;

B. ☐ Render judgment that partition be made and appoint three disinterested commissioners pursuant to 12 V.S.A. § 5169 to set off each share in kind by metes and bounds;

C. ☐ If the Property cannot be divided without great inconvenience, order it assigned to one party on payment of an equalizing sum (§ 5174), or, if no party will take such assignment, order the commissioners to sell the Property and dispose of the proceeds among the parties according to their interests (§§ 5175-5177);

D. ☐ Order a full accounting among the cotenants and adjust the equities for contributions, improvements (§ 5180), rents, ouster, waste, and any equalizing payment as pleaded in Count IV;

E. ☐ Award Plaintiff reasonable costs against the adverse party as provided in 12 V.S.A. § 5169, and fix and apportion the commissioners' fees pursuant to § 5181;

F. ☐ Order that the commissioners' report and the Court's judgment be recorded in the town land records (§ 5173); and

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

14. VERIFICATION

STATE OF VERMONT )
[________________] COUNTY, 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 Vermont
My Commission Expires: [__/__/____]

15. SIGNATURE AND SERVICE BLOCKS

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

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Esq., ERN [____________]

Attorney for Plaintiff

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

16. 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 ESTATE was served upon the following by [the court's electronic-filing system / U.S. Mail, postage prepaid / personal service / publication]:

[SERVICE LIST WITH NAMES AND ADDRESSES]

[________________________________]
[ATTORNEY NAME]

17. VERMONT PRACTICE NOTES

• Governing chapter. Partition of real estate is governed by 12 V.S.A. ch. 179 (§§ 5161-5188). Bring the action by complaint and summons in the Superior Court of the county where the Property lies (§ 5163); the complaint must state the title, the names of the owners as far as known, and a particular description of the premises.
• Three commissioners. On judgment for the plaintiff (or default), the Court appoints three disinterested residents of the county as commissioners to set off each share by metes and bounds (§§ 5169, 5171). Their report and the judgment are recorded in the town land records (§§ 5172-5173). Under § 5169(b) (added 2019), the parties may, with court approval, waive commissioners and proceed to a bench trial.
• Assignment before sale. Vermont's statute prefers division in kind, then assignment to one party on payment of an equalizing sum where the Property cannot be divided without great inconvenience (§ 5174). A sale is ordered only when no interested party will take the assignment and pay (§ 5175); the commissioners conduct the sale and convey (§ 5176), and proceeds are distributed by interest (§ 5177).
• Improvements and accounting. Section 5180 provides for payment for improvements. Vermont courts equalize the burdens and benefits of co-ownership and adjust for contributions, rents, and the reasonable rental value upon ouster. See Massey v. Hrostek, 2009 VT 70, 186 Vt. 211; Snide v. Burke-Schoff, No. 734-11-12 Wrcv (Vt. Super. Ct. 2014).
• Commissioner procedure. Commissioner proceedings and the court's review of their report are governed by V.R.C.P. 53. Malletts Bay Homeowners' Ass'n v. Mongeon Bay Props., 2008 VT 62, 184 Vt. 541. Commissioners may not purchase the property (§ 5184); their fees are fixed and paid under § 5181.
• No UPHPA in Vermont. Vermont has not enacted the Uniform Partition of Heirs Property Act. Cotenants do not have UPHPA notice, appraisal, cotenant-buyout, or open-market-sale protections; any heirs-property allegations are informational only.
• Confirm citations. Verify current section numbers and any amendments on the Vermont Legislature website before filing.

18. SOURCES AND REFERENCES

• 12 V.S.A. ch. 179 (Partition of Real Estate) — https://legislature.vermont.gov/statutes/chapter/12/179
• 12 V.S.A. § 5161 (Who may have partition)
• 12 V.S.A. § 5163 (Complaint and summons; venue)
• 12 V.S.A. § 5169 (Judgment; commissioners; waiver)
• 12 V.S.A. §§ 5171-5173 (Partition; report; recording)
• 12 V.S.A. §§ 5174-5177 (Assignment; sale; proceeds)
• 12 V.S.A. § 5180 (Pay for improvements)
• Massey v. Hrostek, 2009 VT 70, 186 Vt. 211
• Snide v. Burke-Schoff, No. 734-11-12 Wrcv (Vt. Super. Ct. 2014) — https://www.vtcourts.gov/media/1112
• Vermont Judiciary — https://www.vermontjudiciary.org/

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