As used in
this chapter, unless the context otherwise requires:
1. “Ascendant” means an individual who precedes another individual in lineage in the direct line of ascent from the other individual.
2. “Collateral” means an individual who is related to another individual under the law of intestate succession of this state but who is not
the other individual’s ascendant or descendant.
3. “Cotenant” means a person holding title to real property under tenancy in common ownership.
4. “Descendant” means an individual who follows another individual in lineage in the direct line of descent from the other individual.
5. “Heirs property” means real property held in tenancy in common that satisfies all of the following requirements as of the date of the filing
of a partition action: a. There is not a recorded agreement that binds all of the cotenants that governs the partition of the property.
b. One or more of the cotenants acquired title from a living or deceased relative.
c. Any of the following apply: (1) Twenty percent or more of the interests are held by cotenants who are relatives.
(2) Twenty percent or more of the interests are held by an individual who acquired title from a living or deceased relative.
(3) Twenty percent or more of the cotenants are relatives.
6. “Owelty” means an equitable remedy in a partition action used to equalize the value of the property a party receives through the payment
of a sum of money from a recipient of a higher value property to the recipient of a lower value property.
7. “Partition by sale” means a court-ordered sale of property subject to partition.
8. “Partition in kind” means a court-ordered division of property subject to partition into physically distinct and separately titled parcels.
9. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable
in perceivable form.
10. “Relative” means an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage,
adoption, or other law of this state.
SUBCHAPTER IIGENERAL PROVISIONS
651.2 Action for partition of property.
Property shall be partitioned by equitable proceedings. A property subject to partition shall be partitioned by sale and the
proceeds from the sale divided by the owners of the property unless one or more of the property owners files a request for
partition in kind and the court determines partition in kind is equitable and practicable.
651.3 Partition of real estate pending probate or administration of estate.
If an entire interest in real estate is owned by a decedent on whose estate administration or probate is pending a partition
action shall not be brought until four months after the second publication of the notice of the appointment of the personal
representative. A partition action shall not be brought at any time while an application for authority to sell such real estate
is pending in a probate proceeding.
651.4 Petition for partition of property.
A petition for partition of property shall describe the property and the plaintiff’s interest in the property. The petition
shall name all indispensable parties pursuant to
section 651.5 and state the nature and extent of each interest or lien as far as each interest or lien is known by the plaintiff.
651.5 Parties to petition for partition of property.
1. A petition for partition of property shall include as parties all persons indispensable to the partition including an owner
of an undivided interest and a holder of a lien on all or part of the property.
2. A petition for partition of property may include as parties a person having an actual, apparent, claimed, or contingent interest
in the property.
3. The court shall have jurisdiction over an unborn person’s contingent or prospective vested interest as a cotenant of real
property in a partition proceeding. The court shall appoint a guardian ad litem for such unborn person pursuant to the rules
of civil procedure. The partition in kind or partition by sale of the real property pursuant to a court decree shall have
the same force and effect as to all such unborn persons, or persons claiming by, through, or under the unborn person, as though
the unborn person were in being when the decree was entered and the real property or proceeds of the unborn person’s interest
shall be subject to the order of the court until the right fully vests.
651.6 Answer to partition petition.
A defendant’s answer to a partition petition shall state the amount and nature of the defendant’s interest. A defendant may
deny the interest of a plaintiff and by supplemental pleading, if necessary, may deny the interest of any other defendant.
651.7 Joinder and counterclaim.
A party may perfect or quiet title to property that is subject to a partition petition or request adjudication of a right
of a party as to any matter originating from or connected to the property, including a lien between any parties. Except as
permitted by
this section, a joinder of any other claim to a partition petition shall not be permitted. A counterclaim to a partition petition shall
not be permitted.
651.8 Partition of personal property subject to lien.
Personal property that is subject to a lien on the whole or any part of the property shall only be partitioned by sale.
651.9 Partition of real and personal property in same action.
Real and personal property owned by the same person may be partitioned in the same action. A referee appointed by the court
may act as to both the real and the personal property.
651.10 Jurisdiction of property partitioned in kind or of proceeds from partition by sale.
Property that has been partitioned in kind or the proceeds from a property that has been partitioned by sale shall be subject
to the order of the court until the disposition of the rights in the property become fully vested.
651.11 Property partitioned by sale and partitioned in kind in same action.
If all parts of a property cannot be partitioned in kind, parts of the property may be partitioned in kind and other parts
of the property may be partitioned by sale as provided in
this chapter.
651.12 Initial court decree and appointment of referee.
The court shall file an initial decree establishing the shares and interests of all owners in a property subject to a partition
petition. One referee shall be appointed in the decree unless all owners of the property agree upon a larger number of referees.
The decree shall order an appraisal or estimation of the valuation of the property and may direct either a public or private
sale of the property. Unless all owners of the property agree to an alternative method for conducting the appraisal or of
estimating the valuation of the property, the decree shall appoint three disinterested persons with knowledge of property
valuation to appraise the property. The decree shall direct the referee to file a report with the court setting forth the
referee’s recommendations for completing the partition of the property. All other contested issues related to the partition
petition, including liens, may be determined by the initial decree or by a supplemental decree or decrees.
651.13 Abstract, plats, and surveys.
The court may order the filing of a complete abstract covering real property involved in a partition action. The court may
order a party to the partition action to produce any abstract in the party’s possession or control. The court may order a
plaintiff to obtain an abstract if a complete abstract is unavailable. The expense for such abstract shall be taxed as costs.
The abstract shall be available to the court or any party to the partition action during the partition proceedings. The court
may also order a plaintiff to obtain a plat or survey and the expense for such shall be taxed as costs.
651.14 Adjudication of liens on property subject to partition.
The court shall decide the nature, extent, priority, or validity of a party’s lien not previously determined and any other
issues as the court directs. The referee appointed by the court shall provide notice of the court hearing to decide such matters
to the interested parties. Adjudication of liens shall precede a partition in kind. A partition by sale and the distribution
of proceeds from such sale to any party not affected by a lien may proceed prior to adjudication of liens on the property.
651.15 Referee possession of property and court preservation of property.
The court may order a referee to lease or to take possession of a property subject to partition. The court may issue an injunction
to preserve a property subject to partition or issue an order providing for the care and custody of such property. Any expenses
incurred under
this section as allowed by the court shall be taxed as costs.
651.16 Procedure for partition in kind.
1. A court-appointed referee authorized to partition a property in kind shall qualify by taking an oath. A bond shall not be
required.
2. The referee shall designate each proposed parcel of the partitioned property by visible monuments. If allowed by the court,
the referee may employ a surveyor or assistants to aid the referee and the expenses for such shall be taxed as costs.
3. For good reasons shown the court may order a referee making a partition in kind to allot a particular parcel or a particular
article of personal property to a specific party.
4. The referee shall file a report with the court that details the referee’s proposed division of the property subject to partition
in kind. The report shall describe with reasonable particularity the respective shares and the specific property allotted
to each property owner. If real property is part of the partition, a plat shall be filed with the report. The referee may
recommend owelty payments as part of the referee’s recommendation for the partition in kind. The court shall promptly set
a time and place for a hearing on the referee’s report. The referee shall give notice of such hearing to all interested parties
as ordered by the court.
5. After the hearing the court may approve, modify, or disapprove the referee’s report, or order the property partitioned by
sale. If the court approves partition in kind subject to owelty payments as recommended by the referee, the court shall order
that the partition in kind shall not be completed until all owelty payments have been made. If all owelty payments are not
made as ordered, the court shall make further orders as appropriate. On approving a partition in kind after all owelty payments
have been made, the court shall file a decree that includes all of the following: a. Describes the property partitioned in kind in its entirety.
b. Describes each partitioned parcel or article of personal property allotted to each property owner.
c. Enters judgment against each property owner for each property owner’s apportioned costs. Such costs shall be a lien on each
owner’s respective allotted parcel or article and for which special execution may issue on demand of any interested person.
6. Upon completion of a partition in kind of real property pursuant to a court decree, the clerk of court shall file a certified
copy of the decree with the county recorder and provide a copy to the county auditor of each county where any of the partitioned
property is located. The county auditor shall record a transfer in the deed records and index each parcel as a conveyance
with the name of the owner of each parcel as the grantee and the names of all other parties to the partition petition as grantors.
The costs of making and recording the certified copy of the decree shall be taxed as costs in the case.
651.17 Referee’s report to court of inability to make partition in kind.
A referee shall file a report with the court if the referee is not able to make a partition in kind on a property subject
to partition. Upon receipt of the report, the court shall take the following actions:
1. If the partition involves personal property, the court shall order a sale of the personal property without further notice.
2. If the partition involves real property, the court shall set a hearing as provided under section 651.16. After such hearing the court may order a sale or other disposition of the real property, as the court deems appropriate.
651.18 Procedure for partition by sale.
1. A referee appointed by the court to partition property by sale shall qualify by taking an oath. A bond shall not be required
before the referee conveys real property unless the referee is required to do any of the following: a. Sell personal property.
b. Take possession of real property.
c. Receive a payment on the sale before conveyance of the real property.
2. Before conveying real property, the referee shall give bond in the amount of one hundred twenty-five percent of the total
sale price of the real property, payable to the parties entitled to the proceeds from the sale, and conditioned on the faithful
discharge of the referee’s duties.
3. The referee shall file a report with the court that provides all of the following: a. A recommendation for the appropriate public or private sale process to offer the property for sale, including but not limited
to a public auction or private listing.
b. A copy of any appraisal for the property to be partitioned if required by the court.
4. The court shall promptly set a time and place for a hearing on the referee’s report. The referee shall provide notice of the
hearing to all interested parties.
5. After the hearing the court may approve, modify, or disapprove the referee’s report. If the court orders the property to be
partitioned by sale, the referee shall offer the property for sale pursuant to the court order.
6. The referee shall give notice of the time and place of a public sale of the property by two separate publications, at least
six days apart, in a newspaper of general circulation in the county where the public sale of the property is to be held. The
last publication shall be at least seven days prior to a public sale of real estate and at least four days prior to a public
sale of personal property. If authorized by the court, the referee may advertise the sale beyond the required notice and may
employ an auctioneer or assistant to assist the referee with the sale of the property. If allowed by the court, the expense
of such shall be taxed as costs.
7. The referee shall report all proposed sales to the court. The court shall promptly set a time and place for a hearing and
the referee shall give notice to all interested parties. Notice of the hearing shall also be given to any party who files
a request with the clerk of court, with the party’s name and the address where notice is to be sent, before the referee’s
report is approved by the court. The clerk shall docket the request and transmit a copy to the referee.
8. After the hearing the court may approve or disapprove the sale of the property. The court may expressly order a private sale
of the property for less than the appraised value of the property.
9. Real property shall not be conveyed to a buyer until a partition by sale is approved by court order. Real property shall not
be conveyed to a buyer until the sale price for such property has been paid in full.
10. If the court disapproves the partition by sale of a property, all moneys paid or securities given shall be returned to the
persons entitled to such.
11. The court may require a party entitled to sale proceeds from a property partitioned by sale to give satisfactory security
to refund any proceeds received, with interest, before such party receives proceeds arising from the sale in the event the
court later rules such party is not entitled to the proceeds.
651.19 Validity of referee’s deed.
Upon court approval of a sale of property to be partitioned by sale, the referee shall file a referee’s deed that shall be
recorded in the county where the real estate is located. The recorded referee’s deed shall be valid against all subsequent
purchasers and against all persons who are parties to the partition by sale proceeding.
651.20 Partition by sale — liens on property.
Personal property shall be partitioned by sale free of all liens. Real property shall be partitioned by sale free of all liens
except liens held against the entire real property.
651.21 Proceeds of property partitioned by sale.
1. After a property has been partitioned by sale, a party, including a holder of a lien from which the property has been freed
by the sale, shall have the same rights or interests in the proceeds as the party had in the property sold, subject to a prior
charge for costs.
2. The court shall appoint a trustee, or order other suitable provisions, for the proceeds of a share held for life or years
in the remainder. The ascertained share of any absent owner shall be retained, or the proceeds invested for the owner’s benefit,
under an order of the court.
651.22 Costs of partition action.
All costs related to a partition action shall be advanced by the plaintiff with such costs paid by all parties to the action
proportionately to each party’s respective interest. A cost created by a contest arising from the partition action shall be
taxed against the losing contestant unless otherwise ordered by the court. If partition is in kind, costs shall be adjudged
and may be collected as provided in
section 651.16, subsection 5. If partition is by sale, the costs shall be paid from the proceeds and deducted from the shares of the parties against whom
the costs are taxed. Such remedies for collecting costs shall be cumulative of other remedies.
651.23 Plaintiff’s attorney fees.
1. On partition of real property, but not of personal property, the court shall order a reasonable fee in favor of the plaintiff’s
attorney. The fee shall be taxed as costs.
2. If the plaintiff is the losing contestant in a contest arising from any partition action, any of the plaintiff’s attorney
fees relating to such contest shall not be taxed as costs.
651.24 Other fees taxed as costs.
Appraisers, referees, and attorneys appointed by a referee with court approval shall receive reasonable compensation as approved
by the court and such compensation shall be part of the costs.
651.25 Referee’s final report.
Unless waived in writing by all interested parties, the court shall fix a time and a place for a hearing on the referee’s
final report. The referee shall give notice of the hearing to all interested parties.
651.26 Payment of proceeds less than ten thousand dollars to minor.
If a minor for whom no conservator has been appointed is entitled to proceeds from a partition of property by sale in an amount
not exceeding ten thousand dollars, the court may order the proceeds paid to the minor’s parent, guardian, or an adult with
whom the minor resides, for the use of the minor. After such person files a written receipt for the proceeds with the court,
the referee shall be discharged of all liability for the proceeds.