Rule 3.402 Partition Procedure

(A) Determination of Parties' Interests. In ordering partition the court shall determine the rights and interests of the parties in the premises, and describe parts or shares that are to remain undivided for owners whose interests are unknown or not ascertained.

(B) Appointment of Partition Commissioner.

(1) The court shall appoint a disinterested person as partition commissioner to make the partition according to the court's determination of the rights and interests of the parties. If the parties agree, three commissioners may be appointed who shall meet together to perform their duties and act by majority vote.

(2) The partition commissioner must be sworn before an officer authorized to administer oaths to honestly and impartially partition the property as directed by the court. The oath must be filed with the clerk of the court.

(3) If the partition commissioner dies, resigns, or neglects to serve, the court may appoint a replacement.

(C) Proceedings Before Partition Commissioner.

(1) The partition commissioner

(a) may apply to the court for instructions;

(b) must give notice of the meeting to consider the problems of the partition to the parties so that they may be heard if they wish to be; and

(c) may take evidence at the meeting concerning the problems of partition.

(2) The partition commissioner shall divide the premises and allot the respective shares according to the terms in the court's judgment or separate order, and shall designate the several shares and portions by reference to a plat or survey prepared by a land surveyor or engineer licensed by the state.

(3) The partition commissioner must report to the court, specifying the procedures followed, describing the land divided and the shares allotted to each party, and listing the commissioner's charges. The parties shall not be present during the preparation of the report or during the deliberations of a panel of three commissioners. A copy of the report must be sent to each party who has appeared in the action.

(D) Setting Aside, Modification, or Confirmation of Partition Commissioner's Report.

(1) The court may modify or set aside the report and may refer the action to either the same or a newly appointed partition commissioner as often as necessary.

(2) On confirming the report, the court shall enter a judgment binding and conclusive on:

(a) all parties named in the action who

(i) have an interest in the partitioned premises as owners in fee or tenants for years,

(ii) are entitled to the reversion, remainder, or inheritance of the premises after the termination of a particular estate in the premises,

(iii) are or will become entitled to a beneficial interest in the premises, or

(iv) have an interest in an undivided share of the premises as tenants for years, for life, or in dower;

(b) the legal representatives of the parties listed in subrule (D)(2)(a);

(c) all persons interested in the premises who were unknown at the time the action was commenced and were given sufficient notice either by publication or personally; and

(d) all other persons claiming from any of the above parties or persons.

(3) The judgment and partition do not affect persons who have claims as tenants in dower or for life to the entire premises subject to the partition; nor do they preclude a person, except those specified in subrule (D)(2), from claiming title to the premises in question or from controverting the title or interest of the parties among whom the partition was made.

(4) An authenticated copy of the report, the judgment confirming it, and any incorporated surveys may be recorded with the register of deeds of the county in which the land is located. Copies of subdivision plats already of record need not be recorded.

(E) Expenses and Costs. The court may order that the expenses and costs, including attorney fees, be paid by the parties in accordance with their respective rights and equities in the premises. An order requiring a party to pay expenses and costs may be enforced in the same manner as a judgment.

(F) Setting Off of Interests in Special Cases.

(1) The court may by order set off the interest that belonged to a deceased party, without subdivision, to those claiming under that party when it is expedient to do so. Those legally entitled under or through the deceased party must be mentioned by name in the judgment.

(2) If the original parties in interest were fully known, but death, legal proceedings, or other operation of law has caused uncertainty about the identity of the present parties in interest, the interests originally owned by known parties but now owned by unknown persons may be separated as provided in this rule, instead of being left undivided. The division and judgment operate to convey the title to the persons claiming under the known party, according to their legal rights.

(3) If an interest in the premises belongs to known or unknown parties who have not appeared in the action, the court shall order partition of the ascertained interests of the known parties who have appeared in the action. The residue of the premises remains for the parties whose interests have not been ascertained, subject to future division.