Partition Action Complaint - Wisconsin

WISCONSIN PARTITION ACTION — COMPLAINT FOR PARTITION OF REAL PROPERTY

STATE OF WISCONSIN — CIRCUIT COURT — [____________________] COUNTY

Case No.: [________________]
Case Code: 30404 (Declaratory Judgment) / [other applicable code]

SUMMONS AND COMPLAINT FOR PARTITION

THE STATE OF WISCONSIN, to each person named above as a Defendant:

You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you. Within [45] days after [date of receipt / first publication], you must respond with a written answer, as that term is used in Wis. Stat. ch. 802, to the Complaint. [Insert full statutory summons language per Wis. Stat. § 801.095 before filing.]

COMPLAINT

NOW COMES the Plaintiff, [PLAINTIFF NAME], by counsel, and pursuant to Wis. Stat. ch. 842 alleges and complains as follows:

I. PARTIES AND COTENANCY

1. Plaintiff is [☐ an individual residing at / ☐ an entity organized under the laws of] [________________________________].

2. Defendant [COTENANT DEFENDANT NAME] is, upon information and belief, [☐ an individual residing at / ☐ an entity with its principal office at] [________________________________].

3. Persons unknown claiming any interest in the Property are joined as Defendants pursuant to Wis. Stat. § 842.04, and may be served by publication where their identities or addresses cannot be ascertained after diligent inquiry.

4. Plaintiff and Defendants own the Property as cotenants (the "Cotenancy") in the following undivided fractional shares:

5. ☐ Marital-property interest. One or more cotenant interests is [marital property / individual property of a spouse / held with a spouse]. The spouse(s) [____________________] [is / are] joined as necessary part[y/ies] to adjudicate any marital-property interest in the Property. Partition under ch. 842 applies to the cotenancy among the owners; this Complaint does not seek to classify or divide marital property between spouses.

II. JURISDICTION AND VENUE

6. This Court has subject-matter jurisdiction over this partition action pursuant to Wis. Stat. § 842.02 and Article VII of the Wisconsin Constitution.

7. Venue is proper in this County pursuant to Wis. Stat. § 801.50 because the real property that is the subject of this action is located in [____________________] County, Wisconsin.

III. THE PROPERTY

8. The real property that is the subject of this action (the "Property") is located in [____________________] County, Wisconsin, and is described as follows:

Legal Description:

[________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________]

Tax Parcel No.: [________________________________]

Street Address (if any): [________________________________]

Recording Reference: Document No. [________________] / Volume [______], Page [______], Register of Deeds of [____________________] County, recorded [__/__/____].

IV. RIGHT TO PARTITION

9. Plaintiff and Defendants hold record title to the Property as cotenants under the instrument(s) described in Paragraph 4, recorded with the Register of Deeds of [____________________] County, Wisconsin.

10. Plaintiff has an interest in the Property jointly or in common with the other owners and is entitled to sue for judgment partitioning that interest pursuant to Wis. Stat. § 842.02(1).

11. No action for partition is prohibited by statute, and no agreement among the parties (within the 30-year limit of Wis. Stat. § 842.02(1)) bars partition of the Property.

12. The cotenants are unable to agree upon the use, management, or disposition of the Property.

V. PARTITION IN KIND OR BY JUDICIAL SALE

13. ☐ Partition in kind. The Property can be divided in kind among the cotenants in proportion to their respective undivided shares without great prejudice to the owners, and Plaintiff demands judgment of partition in kind pursuant to Wis. Stat. §§ 842.02(2), 842.10, and 842.14.

14. ☐ Owelty. If the Property cannot be divided into shares exactly proportionate in value, the Court may direct equalizing (owelty) payments to make the partition in kind just and proportionate.

15. ☐ Judicial sale. In the alternative, if partition in kind is impossible or cannot be made without great prejudice to the owners, Plaintiff demands, pursuant to Wis. Stat. § 842.02(2), an interlocutory judgment of sale under Wis. Stat. § 842.17, a sale conducted under Wis. Stat. § 842.18, and distribution of the net proceeds among the parties according to their respective interests under Wis. Stat. § 842.22.

16. The Court should appoint a referee under Wis. Stat. § 842.07 to determine whether partition can be made without prejudice to the owners and to report to the Court pursuant to Wis. Stat. §§ 842.10 and 842.11.

VI. ACCOUNTING AMONG COTENANTS

17. An accounting and equitable adjustment among the cotenants is necessary and should be incorporated into the judgment of partition or distribution of proceeds. The following credits, charges, and offsets are claimed:

a. ☐ Contributions. Sums advanced by Plaintiff for the common benefit, including [☐ mortgage principal and interest / ☐ real estate taxes / ☐ insurance / ☐ necessary repairs and improvements / ☐ assessments], in the approximate amount of $[____________].

b. ☐ Rents and profits. Rents, profits, or the reasonable rental value received or enjoyed by a cotenant in exclusive possession, in the approximate amount of $[____________].

c. ☐ Ouster. Defendant [____________________] has ousted or excluded Plaintiff from possession since [__/__/____], entitling Plaintiff to an offset for the reasonable rental value of Plaintiff's share during the period of exclusion.

d. ☐ Waste / diminution. Damage to or waste of the Property attributable to a cotenant, in the approximate amount of $[____________].

e. ☐ Owelty. Owelty payments necessary to equalize the value of in-kind allotments.

18. The Court should adjust each cotenant's distributive share of the Property (or of the net sale proceeds) to reflect the foregoing accounting.

VII. LIS PENDENS

19. Plaintiff has filed or will file a lis pendens pursuant to Wis. Stat. § 840.10, giving constructive notice of the pendency of this action affecting title to the Property.

VIII. PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment as follows:

A. Determining the respective undivided interests of all parties in the Property;
B. Appointing a referee under Wis. Stat. § 842.07 to determine whether partition can be made without prejudice and to report to the Court;
C. Ordering partition of the Property in kind among the cotenants in proportion to their interests, with owelty as necessary, pursuant to Wis. Stat. §§ 842.10 and 842.14;
D. In the alternative, if partition in kind cannot be made without great prejudice to the owners, entering an interlocutory judgment of sale under Wis. Stat. § 842.17, ordering sale under Wis. Stat. § 842.18, and distributing the net proceeds under Wis. Stat. § 842.22;
E. Ordering an accounting among the cotenants and adjusting the distributive shares for contributions, rents, ouster, waste, and owelty as set forth herein;
F. Taxing the costs and charges of the partition among the parties in proportion to their interests pursuant to Wis. Stat. § 842.16, and awarding Plaintiff costs as permitted by law; and
G. Granting such other and further relief as the Court deems just and equitable.

Dated this [______] day of [____________________], 20[____].

[________________________________]
[Attorney Name], State Bar No. [____________]
[Firm Name]
[Address]
[City, State, ZIP]
Telephone: [(___) ___-____]
Email: [________________]
Attorney for Plaintiff

VERIFICATION

STATE OF WISCONSIN )
) ss.
COUNTY OF [__________] )

I, [PLAINTIFF NAME], being first duly sworn, on oath state that I am the Plaintiff in the above-entitled action; that I have read the foregoing Complaint for Partition; and that the allegations contained therein are true and correct to the best of my knowledge, information, and belief.

[________________________________]
[PLAINTIFF NAME], Plaintiff

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

[________________________________]
Notary Public, State of Wisconsin
My commission [expires / is permanent]: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [____________________], 20[____], I served a true and correct copy of the foregoing Summons and Complaint for Partition upon the following, by [☐ personal service / ☐ certified mail, return receipt requested / ☐ authorized service of process / ☐ publication under Wis. Stat. § 801.11], at the addresses below:

[________________________________]
[Attorney Name], State Bar No. [____________]
Attorney for Plaintiff

EXHIBITS

• Exhibit A: Legal Description of the Property
• Exhibit B: Deed(s) / Instruments Establishing Cotenancy and Shares
• Exhibit C: Title Report / Abstract
• Exhibit D: Accounting Schedule (contributions, rents, ouster, owelty)
• Exhibit E: Survey / Plat (for in-kind division)

PRACTICE NOTES (Wisconsin)

• Court: Circuit Court of the county where the real property is located (Wis. Stat. § 801.50).
• Right to partition; discretion: A cotenant may seek partition under Wis. Stat. § 842.02, but the circuit court retains equitable discretion and is not required to grant partition where a valid restriction applies. Mueller v. Larson, No. 2021AP780 (Wis. Ct. App. June 29, 2022) (unpublished); Fohr v. Fohr, 2007 WI App 149.
• 30-year limit: An agreement barring partition is enforceable only up to 30 years (Wis. Stat. § 842.02(1)).
• No UPHPA: Wisconsin has not adopted the Uniform Partition of Heirs Property Act; the heirs'-property appraisal/buyout procedures do not apply.
• Marital property: Wisconsin is a marital-property state; classify and, if necessary, join spousal interests before seeking partition of a cotenancy.
• Summons: Conform the summons to Wis. Stat. § 801.095 before filing.

SOURCES AND REFERENCES

• Wis. Stat. ch. 842 (Partition of interest in real property): https://docs.legis.wisconsin.gov/statutes/statutes/842
• Wis. Stat. § 842.02 (Partition; plaintiffs): https://law.justia.com/codes/wisconsin/chapter-842/section-842-02/
• Wis. Stat. ch. 842 section list: https://law.justia.com/codes/wisconsin/chapter-842/
• Note: Wisconsin has not enacted the Uniform Partition of Heirs Property Act (verified against ch. 842).

END OF WISCONSIN PARTITION ACTION TEMPLATE