(a) In each petitioner's initial pleading in a partition action, the petitioner shall state whether the petitioner requests partition by sale. If the petitioner fails to so state, the petitioner shall be deemed to have not requested partition by sale.
(b) In each cotenant's initial responsive pleading, the cotenant shall state whether the cotenant requests partition by sale.
(1) If a cotenant files a responsive pleading but fails to so state, the cotenant shall be deemed to have not requested partition by sale.
(2) If a guardian ad litem is appointed to represent one or more cotenants including, but not limited to, unknown, unlocatable, and legally incapacitated cotenants, the guardian ad litem may, but is not required to, state whether or not such cotenant requests partition by sale, and the guardian ad litem shall have no liability for making or failing to make the election. If a guardian ad litem files a responsive pleading but fails to so state, such cotenant shall be deemed to have not requested partition by sale.
(c) If a cotenant is named as a defendant and served with the complaint but does not appear in the action, the cotenant shall be deemed to have not requested partition by sale, unless the court approves a request to authorize the sale of the cotenant's interest as set forth in subdivisions (1) to (3), inclusive.
(1) Not later than 14 days after the court sends notice to the parties pursuant to subsection (e) or subdivision (1) of subsection (f), any cotenant entitled to buy an interest under this section may request the court to authorize the sale pursuant to this section of the interests of cotenants named as defendants and served with the complaint but not appearing in the action.
(2) If the court receives a timely request under subdivision (1), the court, after a hearing, may deny the request or may authorize the requested sale of the interests of any or all cotenants named as defendants and served with the complaint who did not appear in the action.
(3) If the court approves the request made pursuant to subdivision (1) with respect to any cotenant who was named as a defendant and served with the complaint but did not appear in the action, that cotenant shall be deemed to have requested partition by sale for purposes of this section, and shall be treated for all purposes hereunder as having requested partition by sale.
(d) If no cotenant, including the petitioner, has requested partition by sale, the court shall determine whether the property can be partitioned in kind pursuant to subsections (a), (c), and (d) of Section 35-6A-8 and Section 35-6A-9. If the court determines the property cannot be partitioned in kind, the court shall dismiss the action without prejudice.
(e) If any cotenant, including the petitioner, has requested partition by sale, after the determination of value under Section 35-6A-6, the court shall send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.
(1) Not later than 30 days after the notice is sent, any cotenant except a cotenant that requested partition by sale may give notice to the court that it elects to buy all the interests of the cotenants that requested partition by sale.
(2) The purchase price for the interests of a cotenant that requested partition by sale shall be the value of the entire parcel determined under Section 35-6A-6 multiplied by the cotenant's fractional ownership of the entire parcel.
(3) After expiration of the period in subdivision (1), if only one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall notify all the parties of that fact and of the price to be paid by the electing cotenant calculated pursuant to subdivision (2). If more than one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant's existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant calculated pursuant to subdivision (2).
(4) The court shall set a date, not sooner than 60 days after the end of the applicable notice period in subdivision (1), by which electing cotenants must pay their apportioned price into the court.
(A) If all electing cotenants timely pay their apportioned price into court, the court shall issue an order reallocating all the interests of the cotenants and disburse the amounts held by the court to the persons entitled to them, and the court shall thereafter enter such other orders as may be appropriate and dismiss the action without prejudice.
(B) If one or more but not all of the electing cotenants fail to pay their apportioned price on time, the court shall give notice to the electing cotenants that paid their apportioned price of the remaining interests of the cotenants that requested partition by sale and the total price for those interests.
(C) If no electing cotenant timely pays its apportioned price, the court shall proceed according to subsection (f) as if the interests of the cotenants that requested partition by sale were not purchased pursuant to this subsection.
(5) Not later than 20 days after the court gives notice pursuant to paragraph (B) of subdivision (4), any cotenant that paid may elect to purchase all of the remaining interests of the cotenants that requested partition by sale by paying the entire price into the court.
(A) If only one cotenant timely pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall issue an order reallocating the remaining interests of the cotenants that requested partition by sale to that cotenant. The court shall issue promptly an order reallocating the interests of all of the cotenants and disburse the amounts held by it to the persons entitled to them.
(B) If more than one cotenant timely pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall reapportion the remaining interests of the cotenants that requested partition by sale among those paying cotenants, based on each paying cotenant's original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interests of the cotenants that requested partition by sale. The court shall issue promptly an order reallocating all of the cotenants' interests, disburse the amounts held by it to the persons entitled to them, and promptly refund any excess payment held by the court.
(C) If no cotenant pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall proceed according to subsection (f) as if the interests of the cotenants that requested partition by sale were not purchased pursuant to subsection (f).
(f) If no cotenant elects pursuant to subsection (e) to buy all the interests of the cotenants that requested partition by sale, the court shall proceed as follows:
(1) The court shall send notice to the parties that no cotenant elected pursuant to subsection (e) to buy all the interests of the cotenants that requested partition by sale and that any cotenant that requested partition by sale may buy all the interests of the other cotenants that requested partition by sale.
(2) Not later than 30 days after the notice is sent under subdivision (1), any cotenant that requested partition by sale may give notice to the court that it elects to buy all the interests of the other cotenants that requested partition by sale.
(3) Notwithstanding the cotenant's prior request for partition by sale, any cotenant making an election to buy pursuant to this subdivision, for purposes of this subsection, shall be deemed to have not requested partition by sale.
(4) The purchase price for the interest of a cotenant that requested partition by sale shall be the value of the entire parcel determined under Section 35-6A-6 multiplied by the cotenant's fractional ownership of the entire parcel.
(5) If only one cotenant elects to buy all the interests of the other cotenants that requested partition by sale, the court shall notify all the parties of that fact and of the price to be paid by the electing cotenant calculated pursuant to subdivision (4). If more than one cotenant elects to buy all the interests of the other cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant's existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant calculated pursuant to subdivision (4).
(6) The court shall set a date, not sooner than 60 days after the end of the applicable notice period in subdivision (1), by which electing cotenants must pay their apportioned price into the court.
(A) If all electing cotenants timely pay their apportioned price into court, the court shall issue an order reallocating all the interests of the cotenants and disburse the amounts held by the court to the persons entitled to them, and the court shall thereafter enter such other orders as may be appropriate and dismiss the action without prejudice.
(B) If one or more but not all of the electing cotenants fail to pay their apportioned price on time, the court shall give notice to the electing cotenants that paid their apportioned price of the remaining interests of the cotenants that requested partition by sale and the total price for those interests.
(C) If no electing cotenant timely pays its apportioned price, the court shall resolve the partition action under Section 35-6A-8 to Section 35-6A-11, inclusive, as if the interests of the cotenants that requested partition by sale were not purchased.
(7) Not later than 20 days after the court gives notice pursuant to paragraph (B) of subdivision (6), any cotenant that paid may elect to purchase all of the remaining interests of the cotenants that requested partition by sale by paying the entire price into the court.
(A) If only one cotenant timely pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall issue an order reallocating the remaining interests of the cotenants that requested partition by sale to that cotenant. The court shall issue promptly an order reallocating the interests of all of the cotenants and disburse the amounts held by it to the persons entitled to them.
(B) If more than one cotenant timely pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall reapportion the remaining interests of the cotenants that requested partition by sale among those paying cotenants, based on each paying cotenant's original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interests of the cotenants that requested partition by sale. The court shall issue promptly an order reallocating all of the cotenants' interests, disburse the amounts held by it to the persons entitled to them, and promptly refund any excess payment held by the court.
(C) If no electing cotenant pays the entire price for the remaining interests of the cotenants that requested partition by sale, the court shall resolve the partition action under Section 35-6A-8 to Section 35-6A-11, inclusive, as if the interests of the cotenants that requested partition by sale were not purchased.
(8) If no cotenant elects to buy all the interests of the other cotenants that requested partition by sale, the court shall send notice to all the parties of that fact and resolve the partition action under Section 35-6A-8 to Section 35-6A-11, inclusive.
Last modified: May 3, 2021