Senate Study Bill 3065 - Introduced SENATE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON ZAUN) A BILL FOR An Act relating to partition of property in kind and partition 1 of property by sale and rescinding the rules of civil 2 procedure related to partition. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 5498XC (4) 87 ko/rj

S.F. _____ SUBCHAPTER I 1 DEFINITIONS 2 Section 1. NEW SECTION . 651.1 Definitions. 3 As used in this chapter, unless the context otherwise 4 requires: 5 1. “Ascendant” means an individual who precedes another 6 individual in lineage in the direct line of ascent from the 7 other individual. 8 2. “Collateral” means an individual who is related to 9 another individual under the law of intestate succession of 10 this state but who is not the other individual’s ascendant or 11 descendant. 12 3. “Cotenant” means a person holding title to real property 13 under tenancy in common ownership. 14 4. “Descendant” means an individual who follows another 15 individual in lineage in the direct line of descent from the 16 other individual. 17 5. “Heirs property” means real property held in tenancy in 18 common that satisfies all of the following requirements as of 19 the date of the filing of a partition action: 20 a. There is not a recorded agreement that binds all of the 21 cotenants that governs the partition of the property. 22 b. One or more of the cotenants acquired title from a living 23 or deceased relative. 24 c. Any of the following apply: 25 (1) Twenty percent or more of the interests are held by 26 cotenants who are relatives. 27 (2) Twenty percent or more of the interests are held by 28 an individual who acquired title from a living or deceased 29 relative. 30 (3) Twenty percent or more of the cotenants are relatives. 31 6. “Owelty” means an equitable remedy in a partition action 32 used to equalize the value of the property a party receives 33 through the payment of a sum of money from a recipient of 34 a higher value property to the recipient of a lower value 35 -1- LSB 5498XC (4) 87 ko/rj 1/ 22

S.F. _____ property. 1 7. “Partition by sale” means a court-ordered sale of 2 property subject to partition. 3 8. “Partition in kind” means a court-ordered division of 4 property subject to partition into physically distinct and 5 separately titled parcels. 6 9. “Record” means information that is inscribed on a 7 tangible medium or that is stored in an electronic or other 8 medium and is retrievable in perceivable form. 9 10. “Relative” means an ascendant, descendant, or collateral 10 or an individual otherwise related to another individual by 11 blood, marriage, adoption, or other law of this state. 12 SUBCHAPTER II 13 GENERAL PROVISIONS 14 Sec. 2. NEW SECTION . 651.2 Action for partition of 15 property. 16 Property shall be partitioned by equitable proceedings. A 17 property subject to partition shall be partitioned by sale 18 and the proceeds from the sale divided by the owners of the 19 property unless one or more of the property owners files 20 a request for partition in kind and the court determines 21 partition in kind is equitable and practicable. 22 Sec. 3. NEW SECTION . 651.3 Partition of real estate pending 23 probate or administration of an estate. 24 If an entire interest in real estate is owned by a decedent 25 on whose estate administration or probate is pending a 26 partition action shall not be brought until four months after 27 the second publication of the notice of the appointment of 28 the personal representative. A partition action shall not be 29 brought at any time while an application for authority to sell 30 such real estate is pending in a probate proceeding. 31 Sec. 4. NEW SECTION . 651.4 Petition for partition of 32 property. 33 A petition for partition of property shall describe the 34 property and the plaintiff’s interest in the property. The 35 -2- LSB 5498XC (4) 87 ko/rj 2/ 22

S.F. _____ petition shall name all indispensable parties pursuant to 1 section 651.5 and state the nature and extent of each interest 2 or lien as far as each interest or lien is known by the 3 plaintiff. 4 Sec. 5. NEW SECTION . 651.5 Parties to a petition for 5 partition of property. 6 1. A petition for partition of property shall include as 7 parties all persons indispensable to the partition including 8 an owner of an undivided interest and a holder of a lien on all 9 or part of the property. 10 2. A petition for partition of property may include as 11 parties a person having an actual, apparent, claimed, or 12 contingent interest in the property. 13 3. The court shall have jurisdiction over an unborn person’s 14 contingent or prospective vested interest as a cotenant of real 15 property in a partition proceeding. The court shall appoint 16 a guardian ad litem for such unborn person pursuant to the 17 rules of civil procedures. The partition in kind or partition 18 by sale of the real property pursuant to a court decree shall 19 have the same force and effect as to all such unborn persons, 20 or persons claiming by, through, or under the unborn person, 21 as though the unborn person were in being when the decree 22 was entered and the real property or proceeds of the unborn 23 person’s interest shall be subject to the order of the court 24 until the right fully vests. 25 Sec. 6. NEW SECTION . 651.6 The answer to a partition 26 petition. 27 A defendant’s answer to a partition petition shall state the 28 amount and nature of the defendant’s interest. A defendant may 29 deny the interest of a plaintiff and by supplemental pleading, 30 if necessary, may deny the interest of any other defendant. 31 Sec. 7. NEW SECTION . 651.7 Joinder and counterclaim. 32 A party may perfect or quiet title to property that is 33 subject to a partition petition or request adjudication of a 34 right of a party as to any matter originating from or connected 35 -3- LSB 5498XC (4) 87 ko/rj 3/ 22

S.F. _____ to the property, including a lien between any parties. Except 1 as permitted by this section, a joinder of any other claim to a 2 partition petition shall not be permitted. A counterclaim to a 3 partition petition shall not be permitted. 4 Sec. 8. NEW SECTION . 651.8 Partition of personal property 5 subject to a lien. 6 Personal property that is subject to a lien on the whole or 7 any part of the property shall only be partitioned by sale. 8 Sec. 9. NEW SECTION . 651.9 Partition of real and personal 9 property in the same action. 10 Real and personal property owned by the same person may be 11 partitioned in the same action. A referee appointed by the 12 court may act as to both the real and the personal property. 13 Sec. 10. NEW SECTION . 651.10 Jurisdiction of property 14 partitioned in kind or of proceeds from a partition by sale. 15 Property that has been partitioned in kind or the proceeds 16 from a property that has been partitioned by sale shall be 17 subject to the order of the court until the disposition of the 18 rights in the property become fully vested. 19 Sec. 11. NEW SECTION . 651.11 Property partitioned by sale 20 and partitioned in kind in the same action. 21 If all parts of a property cannot be partitioned in kind, 22 parts of the property may be partitioned in kind and other 23 parts of the property may be partitioned by sale as provided in 24 this chapter. 25 Sec. 12. NEW SECTION . 651.12 Initial court decree and 26 appointment of referee. 27 The court shall file an initial decree establishing the 28 shares and interests of all owners in a property subject to 29 a partition petition. One referee shall be appointed in the 30 decree unless all owners of the property agree upon a larger 31 number of referees. The decree shall order an appraisal or 32 estimation of the valuation of the property and may direct 33 either a public or private sale of the property. Unless all 34 owners of the property agree to an alternative method for 35 -4- LSB 5498XC (4) 87 ko/rj 4/ 22

S.F. _____ conducting the appraisal or of estimating the valuation of 1 the property, the decree shall appoint three disinterested 2 persons with knowledge of property valuation to appraise the 3 property. The decree shall direct the referee to file a report 4 with the court setting forth the referee’s recommendations for 5 completing the partition of the property. All other contested 6 issues related to the partition petition, including liens, may 7 be determined by the initial decree or by a supplemental decree 8 or decrees. 9 Sec. 13. NEW SECTION . 651.13 Abstract, plats, and surveys. 10 The court may order the filing of a complete abstract 11 covering real property involved in a partition action. The 12 court may order a party to the partition action to produce any 13 abstract in the party’s possession or control. The court may 14 order a plaintiff to obtain an abstract if a complete abstract 15 is unavailable. The expense for such abstract shall be taxed 16 as costs. The abstract shall be available to the court or any 17 party to the partition action during the partition proceedings. 18 The court may also order a plaintiff to obtain a plat or survey 19 and the expense for such shall be taxed as costs. 20 Sec. 14. NEW SECTION . 651.14 Adjudication of liens on a 21 property subject to partition. 22 The court shall decide the nature, extent, priority, or 23 validity of a party’s lien not previously determined and any 24 other issues as the court directs. The referee appointed by 25 the court shall provide notice of the court hearing to decide 26 such matters to the interested parties. Adjudication of liens 27 shall precede a partition in kind. A partition by sale and 28 the distribution of proceeds from such sale to any party not 29 affected by a lien may proceed prior to adjudication of liens 30 on the property. 31 Sec. 15. NEW SECTION . 651.15 Referee possession of property 32 and court preservation of property. 33 The court may order a referee to lease or to take possession 34 of a property subject to partition. The court may issue an 35 -5- LSB 5498XC (4) 87 ko/rj 5/ 22

S.F. _____ injunction to preserve a property subject to partition or issue 1 an order providing for the care and custody of such property. 2 Any expenses incurred under this section as allowed by the 3 court shall be taxed as costs. 4 Sec. 16. NEW SECTION . 651.16 The procedure for partition 5 in kind. 6 1. A court-appointed referee authorized to partition a 7 property in kind shall qualify by taking an oath. A bond shall 8 not be required. 9 2. The referee shall designate each proposed parcel of the 10 partitioned property by visible monuments. If allowed by the 11 court, the referee may employ a surveyor or assistants to aid 12 the referee and the expenses for such shall be taxed as costs. 13 3. For good reasons shown the court may order a referee 14 making a partition in kind to allot a particular parcel or a 15 particular article of personal property to a specific party. 16 4. The referee shall file a report with the court that 17 details the referee’s proposed division of the property 18 subject to partition in kind. The report shall describe with 19 reasonable particularity the respective shares and the specific 20 property allotted to each property owner. If real property 21 is part of the partition, a plat shall be filed with the 22 report. The referee may recommend owelty payments as part of 23 the referee’s recommendation for the partition in kind. The 24 court shall promptly set a time and place for a hearing on 25 the referee’s report. The referee shall give notice of such 26 hearing to all interested parties as ordered by the court. 27 5. After the hearing the court may approve, modify, 28 or disapprove the referee’s report, or order the property 29 partitioned by sale. If the court approves partition in kind 30 subject to owelty payments as recommended by the referee, the 31 court shall order that the partition in kind shall not be 32 completed until all owelty payments have been made. If all 33 owelty payments are not made as ordered, the court shall make 34 further orders as appropriate. On approving a partition in 35 -6- LSB 5498XC (4) 87 ko/rj 6/ 22

S.F. _____ kind after all owelty payments have been made, the court shall 1 file a decree that includes all of the following: 2 a. Describes the property partitioned in kind in its 3 entirety. 4 b. Describes each partitioned parcel or article of personal 5 property allotted to each property owner. 6 c. Enters judgment against each property owner for each 7 property owner’s apportioned costs. Such costs shall be a lien 8 on each owner’s respective allotted parcel or article and for 9 which special execution may issue on demand of any interested 10 person. 11 6. Upon completion of a partition in kind of real property 12 pursuant to a court decree, the clerk of court shall file a 13 certified copy of the decree with the county recorder and 14 provide a copy to the county auditor of each county where any 15 of the partitioned property is located. The county auditor 16 shall record a transfer in the deed records and index each 17 parcel as a conveyance with the name of the owner of each 18 parcel as the grantee and the names of all other parties to 19 the partition petition as grantors. The costs of making and 20 recording the certified copy of the decree shall be taxed as 21 costs in the case. 22 Sec. 17. NEW SECTION . 651.17 Referee’s report to the court 23 of inability to make a partition in kind. 24 A referee shall file a report with the court if the referee 25 is not able to make a partition in kind on a property subject to 26 partition. Upon receipt of the report, the court shall take 27 the following actions: 28 1. If the partition involves personal property, the court 29 shall order a sale of the personal property without further 30 notice. 31 2. If the partition involves real property, the court shall 32 set a hearing as provided under section 651.16. After such 33 hearing the court may order a sale or other disposition of the 34 real property, as the court deems appropriate. 35 -7- LSB 5498XC (4) 87 ko/rj 7/ 22

S.F. _____ Sec. 18. NEW SECTION . 651.18 Procedure for partition by 1 sale. 2 1. A referee appointed by the court to partition property 3 by sale shall qualify by taking an oath. A bond shall not be 4 required before the referee conveys real property unless the 5 referee is required to do any of the following: 6 a. Sell personal property. 7 b. Take possession of real property. 8 c. Receive a payment on the sale before conveyance of the 9 real property. 10 2. Before conveying real property, the referee shall give 11 bond in the amount of one hundred twenty-five percent of the 12 total sale price of the real property, payable to the parties 13 entitled to the proceeds from the sale, and conditioned on the 14 faithful discharge of the referee’s duties. 15 3. The referee shall file a report with the court that 16 provides all of the following: 17 a. A recommendation for the appropriate public or private 18 sale process to offer the property for sale, including but not 19 limited to a public auction or private listing. 20 b. A copy of any appraisal for the property to be 21 partitioned if required by the court. 22 4. The court shall promptly set a time and place for a 23 hearing on the referee’s report. The referee shall provide 24 notice of the hearing to all interested parties. 25 5. After the hearing the court may approve, modify, or 26 disapprove the referee’s report. If the court orders the 27 property to be partitioned by sale, the referee shall offer the 28 property for sale pursuant to the court order. 29 6. The referee shall give notice of the time and place of a 30 public sale of the property by two separate publications, at 31 least six days apart, in a newspaper of general circulation in 32 the county where the public sale of the property is to be held. 33 The last publication shall be at least seven days prior to a 34 public sale of real estate and at least four days prior to a 35 -8- LSB 5498XC (4) 87 ko/rj 8/ 22

S.F. _____ public sale of personal property. If authorized by the court, 1 the referee may advertise the sale beyond the required notice 2 and may employ an auctioneer or assistant to assist the referee 3 with the sale of the property. If allowed by the court, the 4 expense of such shall be taxed as costs. 5 7. The referee shall report all proposed sales to the court. 6 The court shall promptly set a time and place for a hearing 7 and the referee shall give notice to all interested parties. 8 Notice of the hearing shall also be given to any party who 9 files a request with the clerk of court, with the party’s 10 name and the address where notice is to be sent, before the 11 referee’s report is approved by the court. The clerk shall 12 docket the request and transmit a copy to the referee. 13 8. After the hearing the court may approve or disapprove the 14 sale of the property. The court may expressly order a private 15 sale of the property for less than the appraised value of the 16 property. 17 9. Real property shall not be conveyed to a buyer until a 18 partition by sale is approved by court order. Real property 19 shall not be conveyed to a buyer until the sale price for such 20 property has been paid in full. 21 10. If the court disapproves the partition by sale of a 22 property, all moneys paid or securities given shall be returned 23 to the persons entitled to such. 24 11. The court may require a party entitled to sale proceeds 25 from a property partitioned by sale to give satisfactory 26 security to refund any proceeds received, with interest, before 27 such party receives proceeds arising from the sale in the 28 event the court later rules such party is not entitled to the 29 proceeds. 30 Sec. 19. NEW SECTION . 651.19 Validity of referee’s deed. 31 Upon court approval of a sale of property to be partitioned 32 by sale, the referee shall file a referee’s deed that shall be 33 recorded in the county where the real estate is located. The 34 recorded referee’s deed shall be valid against all subsequent 35 -9- LSB 5498XC (4) 87 ko/rj 9/ 22

S.F. _____ purchasers and against all persons who are parties to the 1 partition by sale proceeding. 2 Sec. 20. NEW SECTION . 651.20 Partition by sale —— liens 3 on property. 4 Personal property shall be partitioned by sale free of all 5 liens. Real property shall be partitioned by sale free of all 6 liens except liens held against the entire real property. 7 Sec. 21. NEW SECTION . 651.21 Proceeds of property 8 partitioned by sale. 9 1. After a property has been partitioned by sale, a party, 10 including a holder of a lien from which the property has been 11 freed by the sale, shall have the same rights or interests in 12 the proceeds as the party had in the property sold, subject to 13 a prior charge for costs. 14 2. The court shall appoint a trustee, or order other 15 suitable provisions, for the proceeds of a share held for life 16 or years in the remainder. The ascertained share of any absent 17 owner shall be retained, or the proceeds invested for the 18 owner’s benefit, under an order of the court. 19 Sec. 22. NEW SECTION . 651.22 Costs of a partition action. 20 All costs related to a partition action shall be advanced by 21 the plaintiff with such costs paid by all parties to the action 22 proportionately to each party’s respective interest. A cost 23 created by a contest arising from the partition action shall be 24 taxed against the losing contestant unless otherwise ordered 25 by the court. If partition is in kind, costs shall be adjudged 26 and may be collected as provided in section 651.16, subsection 27 5. If partition is by sale, the costs shall be paid from the 28 proceeds and deducted from the shares of the parties against 29 whom the costs are taxed. Such remedies for collecting costs 30 shall be cumulative of other remedies. 31 Sec. 23. NEW SECTION . 651.23 Plaintiff’s attorney fees. 32 1. On partition of real property, but not of personal 33 property, the court shall order a reasonable fee in favor of 34 the plaintiff’s attorney. The fee shall be taxed as costs. 35 -10- LSB 5498XC (4) 87 ko/rj 10/ 22

S.F. _____ 2. If the plaintiff is the losing contestant in a contest 1 arising from any partition action, any of the plaintiff’s 2 attorney fees relating to such contest shall not be taxed as 3 costs. 4 Sec. 24. NEW SECTION . 651.24 Other fees taxed as costs. 5 Appraisers, referees, and attorneys appointed by a referee 6 with court approval shall receive reasonable compensation as 7 approved by the court and such compensation shall be part of 8 the costs. 9 Sec. 25. NEW SECTION . 651.25 Referee’s final report. 10 Unless waived in writing by all interested parties, the 11 court shall fix a time and a place for a hearing on the 12 referee’s final report. The referee shall give notice of the 13 hearing to all interested parties. 14 Sec. 26. NEW SECTION . 651.26 Payment of proceeds less than 15 ten thousand dollars to a minor. 16 If a minor for whom no conservator has been appointed is 17 entitled to proceeds from a partition of property by sale in an 18 amount not exceeding ten thousand dollars, the court may order 19 the proceeds paid to the minor’s parent, guardian, or an adult 20 with whom the minor resides, for the use of the minor. After 21 such person files a written receipt for the proceeds with the 22 court, the referee shall be discharged of all liability for the 23 proceeds. 24 SUBCHAPTER III 25 SPECIAL PROVISIONS FOR PARTITION OF HEIRS PROPERTY 26 Sec. 27. NEW SECTION . 651.27 Applicability of special 27 provisions of heirs property. 28 If a cotenant requests a partition in kind in an action to 29 partition heirs property, the partition action shall proceed 30 under the special provisions for partition of heirs property 31 under this subchapter. The provisions of this subchapter 32 shall control in the event of a conflict with a provision of 33 subchapter II. 34 Sec. 28. NEW SECTION . 651.28 Initial decree. 35 -11- LSB 5498XC (4) 87 ko/rj 11/ 22

S.F. _____ 1. If the court determines that a property subject to a 1 partition action is heirs property, and a cotenant requests 2 a partition in kind of such property, the court shall file 3 an initial decree pursuant to section 651.12 ordering the 4 partition action to proceed under this subchapter. The court 5 shall appoint a referee and direct the referee to obtain an 6 appraisal as provided in section 651.12. The referee shall 7 file the appraisal with the court. 8 2. Within ten calendar days after the referee files the 9 appraisal with the court, the court shall send notice to the 10 referee and to each party to the partition action. The notice 11 shall provide all of the following information: 12 a. The appraised fair market value of the heirs property. 13 b. The address of the clerk’s office where the appraisal is 14 available for review. 15 c. Advise that a party may file an objection to the 16 appraisal with the court no later than thirty calendar days 17 after the date of notice by the court. An objection must state 18 the grounds for the objection. 19 3. No sooner than thirty calendar days after the date of 20 notice by the court and regardless of whether an objection to 21 the appraisal is filed, the court shall conduct a hearing to 22 determine the fair market value of the heirs property. The 23 court shall set a time and place for the hearing and give 24 notice to the referee and all parties to the partition action. 25 At the hearing, in addition to the court-ordered appraisal, the 26 court may consider any other evidence offered by the referee or 27 by a party to the partition action. 28 4. After the hearing the court shall file an order that 29 determines the fair market value of the heirs property and 30 provide notice of the determination to the referee and all 31 parties to the partition action. 32 Sec. 29. NEW SECTION . 651.29 Cotenant buyout. 33 1. If a cotenant requests partition by sale of the heirs 34 property after receiving notice of the court’s determination of 35 -12- LSB 5498XC (4) 87 ko/rj 12/ 22

S.F. _____ the fair market value of the heirs property pursuant to section 1 651.28, the court shall send notice to all parties advising of 2 all of the following: 3 a. That a cotenant, except a cotenant that has requested 4 partition by sale of the heirs property, may elect to buy all 5 of the interests of a cotenant that has requested partition by 6 sale of the heirs property. 7 b. That a cotenant, except a cotenant that has requested 8 partition by sale of the heirs property, shall give notice to 9 the court no later than forty-five days after the date the 10 court sends notice pursuant to section 651.28, subsection 4, 11 of such cotenant’s election to buy all of the interests of 12 a cotenant that has requested partition by sale of the heirs 13 property. 14 2. The sale price for the interest of a cotenant that has 15 requested a partition by sale of the heirs property shall be 16 the value of the entire heirs property as determined by the 17 court under section 651.28, multiplied by such cotenant’s 18 fractional ownership of the entire heirs property. 19 3. If more than forty-five days have passed since the date 20 the court sent notice pursuant to section 651.28, subsection 4, 21 all of the following shall apply: 22 a. If only one cotenant elects to buy all of the interests 23 of a cotenant that has requested partition by sale of the 24 heirs property, the court shall provide notice of such to all 25 interested parties. 26 b. If more than one cotenant elects to buy all of the 27 interests of a cotenant that has requested partition by sale 28 of the heirs property, the court shall allocate the right 29 to buy such interests among the electing cotenants based on 30 each electing cotenant’s existing fractional ownership of the 31 entire heirs property divided by the total existing fractional 32 ownership of all cotenants electing to buy such interests. 33 The court shall send notice to all interested parties of 34 the calculation used to determine the interest that can be 35 -13- LSB 5498XC (4) 87 ko/rj 13/ 22

S.F. _____ purchased by each electing cotenant and the price to be paid 1 for such interest by each electing cotenant. 2 c. If no cotenant elects to buy all of the interests of 3 a cotenant that has requested partition by sale of the heirs 4 property, the court shall send notice to all interested parties 5 and resolve the partition action pursuant to section 651.30. 6 4. If the court sends notice to the parties pursuant to 7 subsection 3, paragraph “a” or “b” , the court shall set a date 8 no sooner than sixty calendar days after the date that such 9 notice is sent by which the electing cotenants shall pay their 10 apportioned price to the court. The court shall give notice 11 of such date to all interested parties. After such date has 12 passed, all of the following shall apply: 13 a. If all electing cotenants have timely paid their 14 apportioned price to the court, the court shall issue an order 15 reallocating all of the interests of the cotenants in the 16 partitioned heirs property and disburse the amounts held by the 17 court to the persons entitled to such disbursements. 18 b. If none of the electing cotenants has timely paid their 19 apportioned price to the court, the court shall resolve the 20 heirs partition action under section 651.30 as if the interest 21 of the cotenant that has requested partition by sale of the 22 heirs property has not been purchased. 23 c. If one or more but not all of the electing cotenants 24 fail to timely pay their apportioned price to the court, the 25 court on motion shall give notice to the electing cotenants 26 that have timely paid their apportioned price of the interest 27 remaining and the price for which the remaining interest may 28 be purchased. 29 5. Not later than twenty calendar days after the court 30 gives notice pursuant to subsection 4, paragraph “c” , a noticed 31 cotenant may elect to purchase all of the remaining interest 32 by paying the entire price for the remaining interest to the 33 court. After the twenty-calendar-day period has expired, all 34 of the following shall apply: 35 -14- LSB 5498XC (4) 87 ko/rj 14/ 22

S.F. _____ a. If only one cotenant has paid the entire price for the 1 remaining interest in the partitioned heirs property, the 2 court shall issue an order reallocating the remaining interest 3 to that cotenant. The court shall promptly issue an order 4 reallocating the interests of all the cotenants and disburse 5 the amounts held by the court to the persons entitled to such 6 disbursements. 7 b. If none of the cotenants has paid the entire price for 8 the remaining interest in the heirs property, the court shall 9 resolve the partition action under section 651.30 as if the 10 interest of the cotenant that had requested partition by sale 11 of the heirs property has not been purchased. 12 c. If more than one cotenant have paid the entire price 13 for the remaining interest in the heirs property, the court 14 shall reapportion the remaining interest among such cotenants 15 based on each cotenant’s original fractional ownership of the 16 entire heirs property divided by the total original fractional 17 ownership of all cotenants that paid the entire price for 18 the remaining interest. The court shall promptly issue an 19 order reallocating all cotenants’ interests, disburse the 20 amounts held by the court to the persons entitled to such 21 disbursements, and promptly refund any excess payments held by 22 the court to the appropriate persons. 23 6. Not later than forty-five days after the court sends 24 notice to the parties pursuant to subsection 1, a cotenant 25 entitled to buy an interest under this section may request that 26 the court authorize the sale, as part of the pending action, of 27 the interests of any cotenant named as a defendant and served 28 with original notice who did not appear in the action. If the 29 court receives a timely request, the court, after a hearing, 30 may deny the request or authorize the requested additional sale 31 on such terms as the court determines are fair and reasonable, 32 subject to all of the following limitations: 33 a. A sale authorized under this subsection shall occur 34 only after the purchase price for all interests subject to 35 -15- LSB 5498XC (4) 87 ko/rj 15/ 22

S.F. _____ sale under this section has been paid to the court and such 1 interests have been reallocated among the cotenants as provided 2 in this section. 3 b. The purchase price for the interest of a nonappearing 4 cotenant shall be based on the court’s determination of the 5 value of such interest under this section. 6 7. This section shall not be construed to prohibit a 7 cotenant from entering into an agreement with another cotenant 8 to change ownership of their respective interests in the heirs 9 property. 10 Sec. 30. NEW SECTION . 651.30 Alternatives to partition in 11 kind. 12 At the conclusion of a cotenant buyout as provided in 13 section 651.29, the court shall order the heirs property to be 14 partitioned in kind unless the court, after consideration of 15 all factors pursuant to section 651.31, finds that partition 16 in kind will result in great prejudice to the cotenants as a 17 group. In considering whether to order the heirs property to 18 be partitioned in kind, the court shall approve a request by 19 two or more cotenants to aggregate their individual interests 20 in the heirs property. 21 Sec. 31. NEW SECTION . 651.31 Factors the court shall 22 consider in determining if partition in kind will result in great 23 prejudice. 24 1. The court shall consider all of the following factors 25 in determining if partition in kind of heirs property will 26 result in great prejudice to the cotenants of such property as 27 a group: 28 a. Whether the heirs property can be practicably divided 29 among the cotenants. 30 b. Whether a partition in kind will apportion the heirs 31 property in such a way that the aggregate fair market value of 32 the parcels resulting from the division will be materially less 33 than the value of the heirs property if the heirs property is 34 sold as a whole, taking into account the condition under which 35 -16- LSB 5498XC (4) 87 ko/rj 16/ 22

S.F. _____ a court-ordered sale likely will occur. 1 c. Evidence of the collective duration of ownership or 2 possession of the heirs property by a cotenant and one or more 3 predecessors in title or predecessors in possession to the 4 cotenant who are or were relatives of the cotenant or each 5 other. 6 d. A cotenant’s sentimental attachment to the heirs 7 property, including any attachment arising due to the heirs 8 property having ancestral or other unique or special value to 9 the cotenant. 10 e. The lawful use being made of the heirs property by a 11 cotenant and the degree to which the cotenant will be harmed 12 if the cotenant cannot continue the same use of the heirs 13 property. 14 f. The degree to which a cotenant has contributed the 15 cotenant’s pro rata share of the property taxes, insurance, and 16 other expenses associated with maintaining ownership of the 17 heirs property, or has contributed to the physical improvement, 18 maintenance, or upkeep of the heirs property. 19 g. Tax consequences. 20 h. Any other factors the court deems relevant. 21 2. The court shall weigh the totality of all relevant 22 factors and circumstances and not consider any one factor in 23 subsection 1 to be dispositive. 24 Sec. 32. NEW SECTION . 651.32 Applicability of subchapter 25 II provisions. 26 1. If the court orders the heirs property partitioned in 27 kind, the proceedings shall be governed by the procedures set 28 forth in subchapter II that are applicable to a partition in 29 kind. 30 2. If the court orders the heirs property partitioned by 31 sale, the proceedings shall be governed by the procedures set 32 forth in subchapter II applicable to a partition by sale. 33 Sec. 33. REPEAL. Chapter 651, Code 2018, is repealed. 34 Sec. 34. RESCIND. The supreme court shall rescind civil 35 -17- LSB 5498XC (4) 87 ko/rj 17/ 22

S.F. _____ rules of procedure 1.1201 through 1.1228. 1 EXPLANATION 2 The inclusion of this explanation does not constitute agreement with 3 the explanation’s substance by the members of the general assembly. 4 This bill relates to partition of property in kind and 5 partition of property by sale and creates new Code chapter 651. 6 The bill includes partition provisions currently in the rules 7 of civil procedure. 8 The bill defines terms not previously defined for partition 9 including “ascendant”, “collateral”, “cotenant”, “descendant”, 10 “heirs property”, “owelty”, and “relative”. 11 The bill contains general provisions applicable to 12 all property partitions. The current procedures related 13 to an action for partition, partition pending probate or 14 administration of an estate, a petition for partition and 15 the parties to such, the answer to a partition petition, and 16 the prohibition of a counterclaim or joinder of claims to a 17 partition petition are not changed by the bill. 18 The bill requires that personal property subject to a lien be 19 partitioned by sale. Partition of real and personal property 20 owned by the same person may be partitioned in the same 21 partition action. Property may be partitioned by both sale and 22 in kind in the same partition action. Property that has been 23 partitioned in kind, or the proceeds from a partition by sale, 24 are subject to an order of the court until disposition of the 25 rights in the property are fully vested. The court may order 26 the filing of an abstract, adjudicate the validity and priority 27 of liens on a property, order a referee to take possession of 28 a property, or issue an order to preserve a property subject 29 to partition. 30 The bill requires that the court file an initial decree 31 establishing the interest and shares of all owners of a 32 property subject to partition. The court shall appoint one 33 referee unless the parties to the partition agree that more 34 than one referee needs to be appointed. This changes the 35 -18- LSB 5498XC (4) 87 ko/rj 18/ 22