Detailed Answer
Under Arizona law, any co-owner or person holding an interest in real property may seek a partition action in the Superior Court to divide or sell land when co-owners cannot agree on its use or disposition. The court often appoints a special commissioner to handle the technical aspects of dividing or selling the property. Below are the key steps to initiate or consent to a partition action before a court-appointed commissioner in Arizona.
1. Identify All Interested Parties
List every co-owner, lienholder and party with a recorded interest in the property. You must include them as defendants in the partition complaint or secure their written consent to proceed.
2. Prepare and File a Complaint for Partition
- Draft a complaint that describes the property, each party’s ownership or lien interest, and your request for partition. Reference A.R.S. § 12-1301: A.R.S. § 12-1301.
- File the complaint with the Clerk of the Superior Court in the county where the real property is located.
3. Serve Process on Defendants
Serve the complaint and summons on all named parties in compliance with Rule 4 of the Arizona Rules of Civil Procedure. Proper service gives the court jurisdiction over each defendant.
4. Initial Court Hearing and Appointment of a Special Commissioner
At the first court hearing, the judge may appoint a special commissioner. The commissioner’s duties and powers are set out in A.R.S. § 12-1302: A.R.S. § 12-1302. The commissioner will gather evidence on title, determine fair market value, and recommend whether to divide the property in kind or sell it.
5. Conducting the Partition
- If a division “in kind” is practical (e.g., the land can be fairly divided into separate tracts), the commissioner surveys and allocates parcels to each owner.
- If a division in kind is impractical, the commissioner orders a public sale. Sale proceeds are held in escrow and later distributed among owners according to their interest percentages.
Consenting to Partition
Parties may streamline the process by filing a written consent at any time:
- Prepare a stipulation that states all parties agree on the method of partition—whether by sale or in-kind division.
- Detail the agreed valuation method, sale terms or boundary lines in the stipulation.
- File the stipulation with the court; the commissioner implements the agreed plan without contested hearings.
- Upon completion, the commissioner files a final report and accounting. The court reviews and issues a final decree confirming the partition and authorizing transfer or distribution of proceeds.
6. Final Decree and Distribution
After reviewing the commissioner’s report, the court enters a decree of partition. This decree officially divides the property or distributes sale proceeds to each party based on their respective interests.
Disclaimer
This article is for educational purposes only and does not constitute legal advice. For advice tailored to your circumstances, consult a licensed attorney in Arizona.
Helpful Hints
- Obtain a current title report to identify all co-owners and encumbrances.
- Consider informal settlement discussions or mediation to agree on partition terms before filing.
- Secure a qualified real estate appraisal to support property valuation and avoid disputes.
- Keep detailed records of all filings, consents, appraisals and communications.
- Engage an Arizona real estate attorney to guide you through complex title or boundary issues.