Missouri Real Estate Lawyer

Sometimes, a partition lawsuit is the only way to resolve a land dispute. A partition lawsuit seeks to physically divide land among its owners, or to sell such land at public auction and divide the proceeds among the parties, if the land cannot be physically divided. Only owners holding the land as joint tenants, tenants in common, or by an estate for life or years may partition land. Everybody with an interest in the property must be included in a partition lawsuit, which must be filed in the county where the land is located. Additionally, if the property is defined as family property pursuant to Missouri’s Save the Family Farm Act, then that act will apply to the partition lawsuit.

Ownership Share

After the partition lawsuit is filed, the court will first determine the interests of the parties in the property, based on the evidence provided by the parties. The court will consider several factors in determining the share of ownership of the land. For example, the court will usually consider evidence as to the amount of money that each party contributed to the purchase of the property, which party paid the property taxes, which party paid for, or performed, the repairs and improvements made to the property, which parties occupied the property, and whether the owners are related family members. The court will also typically consider evidence that the parties intended an ownership proportion not based upon the financial contributions of the parties. For example, the court could find from the evidence that one party contributed all of the capital required to purchase the property, but that the parties intended to own the property in equal shares.

Division of the Land

If the court orders the land to be divided, then the court must appoint three commissioners to divide the land. The commissioners will typically hire a surveyor to describe the metes and bounds of the division, and then the commissioners will file a report with the court describing how the land is to be divided. The court clerk must notify each party that the report has been filed, and each party then has 30 days from the date of such notice to object to the report. In response to an objection, the court can set aside the report and appoint new commissioners, or the court can confirm the report and enter judgment partitioning the land. Alternatively, the commissioners might report that the land cannot be equitably divided or that it can only be partially divided. In that case, the court might order the land sold rather than divided.

Sale of the Land

An order by the court to sell the property must include the terms and place of the sale and state whether a commissioner or the sheriff is to conduct the sale. Prior to the sale, the sheriff or commissioner must publish notice of the sale in a newspaper in the county where the land is located. The notice must be published at least thirty days prior to the sale and provide the date, time, and place of the sale.

Once the land is sold, the sheriff or commissioner delivers a deed to the purchaser. The expenses of the sale are paid from the proceeds of the sale, including the fee of the commissioner and sheriff. Additionally, plaintiff is entitled to recover from the sale proceeds the fees, costs, and expenses incurred by plaintiff, including plaintiff’s attorney’s fees. But the attorney’s fees are generally limited to the work that would have been required by plaintiff’s attorney if the suit was uncontested. The parties then receive the remaining sale proceeds in the proportion as determined by the court.

Before Filing a Partition Lawsuit

Before filing a partition lawsuit, the plaintiff should identify each entity with an interest in the property and determine how each such interest might affect a partition of the property. For example, the interest of a mortgage lender or of a person occupying the property pursuant to a lease will not be extinguished by a partition of the land. Such interests would likely affect the amount that a person is willing to bid to purchase the property or could discourage bidding altogether.

Finally, parties to a partition lawsuit sometimes add additional claims, such as for ejectment, quiet title, and adverse possession. The interest of a deceased person might also need to be determined in a probate action before the property can be partitioned. Each of these claims and other related suits can complicate the lawsuit, expand the time required for the court to partition the property, and significantly increase the legal fees incurred by the parties. These and other factors should be carefully considered prior to filing a partition lawsuit. As always, it is best to make a good faith effort to resolve a dispute before filing a lawsuit.

This article is for general informational purposes only, and it is not intended as legal advice.

Michael Sewell has successfully litigated numerous Missouri real estate and business related lawsuits since 2005. Please contact Michael at (314) 942-3232 or at michael@sewelllaw.net to discuss your litigation or other legal matters.

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