Iowa 2017-2018 Regular Session Status: Enacted

SF 2175 — A bill for an act relating to partition of property in kind and partition of property by sale. (Formerly SSB 3065.) Effective 7-1-18.

Last action — Signed by Governor.

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  1. ✓
    Introduced
  2. ✓
    In Committee
  3. ✓
    Passed Senate
  4. ✓
    Passed House
  5. ✓
    To Executive
  6. 6
    Enacted

This bill has been enacted into law. Introduced February 05, 2018. Enacted.

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Where this bill stands today.

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Bill Text

What changed in the latest version

32 added · 218 removed

32 line(s) added, 218 removed.

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Senate File 2175 - Introduced SENATE FILE 2175 BY COMMITTEE ON JUDICIARY (SUCCESSOR TO SSB 3065) A BILL FOR An Act relating to partition of property in kind and partition of property by sale.
Senate File 2175 - Enrolled Senate File 2175 AN ACT RELATING TO PARTITION OF PROPERTY IN KIND AND PARTITION OF PROPERTY BY SALE.
TLSB 5498SV (2) 87 ko/rj S.F.
SUBCHAPTER I DEFINITIONS Section 1.
2175 SUBCHAPTER I DEFINITIONS Section 1.
2.
Senate File 2175, p.
2 2.
“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 LSB 5498SV (2) 87 -1- ko/rj 1/22 S.F.
“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.
2175 property.
SUBCHAPTER II GENERAL PROVISIONS Sec.
Senate File 2175, p.
3 SUBCHAPTER II GENERAL PROVISIONS Sec.
The LSB 5498SV (2) 87 -2- ko/rj 2/22 S.F.
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.
2175 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.
The court shall appoint a guardian ad litem for such unborn person pursuant to the rules of civil procedures.
The court shall appoint Senate File 2175, p.
4 a guardian ad litem for such unborn person pursuant to the rules of civil procedures.
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 LSB 5498SV (2) 87 -3- ko/rj 3/22 S.F.
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.
2175 to the property, including a lien between any parties.
651.11 Property partitioned by sale and partitioned in kind in the same action.
651.11 Property partitioned by sale Senate File 2175, p.
5 and partitioned in kind in the same action.
Unless all owners of the property agree to an alternative method for LSB 5498SV (2) 87 -4- ko/rj 4/22 S.F.
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.
2175 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 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 court shall decide the nature, extent, priority, or validity of a party’s lien not previously determined and any Senate File 2175, p.
6 other issues as the court directs.
The court may issue an LSB 5498SV (2) 87 -5- ko/rj 5/22 S.F.
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.
2175 injunction to preserve a property subject to partition or issue an order providing for the care and custody of such property.
After the hearing the court may approve, modify, or disapprove the referee’s report, or order the property partitioned by sale.
After the hearing the court may approve, modify, Senate File 2175, p.
7 or disapprove the referee’s report, or order the property partitioned by sale.
On approving a partition in LSB 5498SV (2) 87 -6- ko/rj 6/22 S.F.
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:
2175 kind after all owelty payments have been made, the court shall file a decree that includes all of the following:
If the partition involves real property, the court shall set a hearing as provided under section 651.16.
If the partition involves real property, the court shall Senate File 2175, p.
8 set a hearing as provided under section 651.16.
LSB 5498SV (2) 87 -7- ko/rj 7/22 S.F.
Sec.
2175 Sec.
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 LSB 5498SV (2) 87 -8- ko/rj 8/22 S.F.
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.
2175 public sale of personal property.
If authorized by the court, Senate File 2175, p.
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.
9 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.
The recorded referee’s deed shall be valid against all subsequent LSB 5498SV (2) 87 -9- ko/rj 9/22 S.F.
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.
2175 purchasers and against all persons who are parties to the partition by sale proceeding.
Personal property shall be partitioned by sale free of all liens.
Personal property shall be partitioned by sale free of all Senate File 2175, p.
10 liens.
LSB 5498SV (2) 87 -10- ko/rj 10/22 S.F.
2.
2175 2.
Show all 127 changed rows (87 more)
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Latest
Sec.
Senate File 2175, p.
11 Sec.
LSB 5498SV (2) 87 -11- ko/rj 11/22 S.F.
1.
2175 1.
b.
Senate File 2175, p.
12 b.
If a cotenant requests partition by sale of the heirs property after receiving notice of the court’s determination of LSB 5498SV (2) 87 -12- ko/rj 12/22 S.F.
If a cotenant requests partition by sale of the heirs property after receiving notice of the court’s determination of the fair market value of the heirs property pursuant to section 651.28, the court shall send notice to all parties advising of all of the following:
2175 the fair market value of the heirs property pursuant to section 651.28, the court shall send notice to all parties advising of all of the following:
The sale price for the interest of a cotenant that has requested a partition by sale of the heirs property shall be the value of the entire heirs property as determined by the court under section 651.28, multiplied by such cotenant’s fractional ownership of the entire heirs property.
The sale price for the interest of a cotenant that has requested a partition by sale of the heirs property shall be the value of the entire heirs property as determined by the Senate File 2175, p.
13 court under section 651.28, multiplied by such cotenant’s fractional ownership of the entire heirs property.
The court shall send notice to all interested parties of the calculation used to determine the interest that can be LSB 5498SV (2) 87 -13- ko/rj 13/22 S.F.
The court shall send notice to all interested parties of the calculation used to determine the interest that can be purchased by each electing cotenant and the price to be paid for such interest by each electing cotenant.
2175 purchased by each electing cotenant and the price to be paid for such interest by each electing cotenant.
If none of the electing cotenants has timely paid their apportioned price to the court, the court shall resolve the heirs partition action under section 651.30 as if the interest of the cotenant that has requested partition by sale of the heirs property has not been purchased.
If none of the electing cotenants has timely paid their apportioned price to the court, the court shall resolve the heirs partition action under section 651.30 as if the interest Senate File 2175, p.
14 of the cotenant that has requested partition by sale of the heirs property has not been purchased.
LSB 5498SV (2) 87 -14- ko/rj 14/22 S.F.
a.
2175 a.
Not later than forty-five days after the court sends notice to the parties pursuant to subsection 1, a cotenant entitled to buy an interest under this section may request that the court authorize the sale, as part of the pending action, of the interests of any cotenant named as a defendant and served with original notice who did not appear in the action.
Not later than forty-five days after the court sends notice to the parties pursuant to subsection 1, a cotenant Senate File 2175, p.
15 entitled to buy an interest under this section may request that the court authorize the sale, as part of the pending action, of the interests of any cotenant named as a defendant and served with original notice who did not appear in the action.
A sale authorized under this subsection shall occur only after the purchase price for all interests subject to LSB 5498SV (2) 87 -15- ko/rj 15/22 S.F.
A sale authorized under this subsection shall occur only after the purchase price for all interests subject to sale under this section has been paid to the court and such interests have been reallocated among the cotenants as provided in this section.
2175 sale under this section has been paid to the court and such interests have been reallocated among the cotenants as provided in this section.
Whether the heirs property can be practicably divided among the cotenants.
Whether the heirs property can be practicably divided Senate File 2175, p.
16 among the cotenants.
Whether a partition in kind will apportion the heirs property in such a way that the aggregate fair market value of the parcels resulting from the division will be materially less than the value of the heirs property if the heirs property is sold as a whole, taking into account the condition under which LSB 5498SV (2) 87 -16- ko/rj 16/22 S.F.
Whether a partition in kind will apportion the heirs property in such a way that the aggregate fair market value of the parcels resulting from the division will be materially less than the value of the heirs property if the heirs property is sold as a whole, taking into account the condition under which a court-ordered sale likely will occur.
2175 a court-ordered sale likely will occur.
If the court orders the heirs property partitioned by sale, the proceedings shall be governed by the procedures set forth in subchapter II applicable to a partition by sale.
If the court orders the heirs property partitioned by sale, the proceedings shall be governed by the procedures set Senate File 2175, p.
17 forth in subchapter II applicable to a partition by sale.
EXPLANATION LSB 5498SV (2) 87 -17- ko/rj 17/22 S.F.
______________________________ ______________________________ CHARLES SCHNEIDER LINDA UPMEYER President of the Senate Speaker of the House I hereby certify that this bill originated in the Senate and is known as Senate File 2175, Eighty-seventh General Assembly.
2175 The inclusion of this explanation does not constitute agreement with the explanation’s substance by the members of the general assembly.
______________________________ W.
This bill relates to partition of property in kind and partition of property by sale and creates new Code chapter 651.
CHARLES SMITHSON Secretary of the Senate Approved _______________, 2018 ______________________________ KIM REYNOLDS Governor
The bill includes partition provisions currently in the rules of civil procedure.
The bill defines terms not previously defined for partition including “ascendant”, “collateral”, “cotenant”, “descendant”, “heirs property”, “owelty”, and “relative”.
The bill contains general provisions applicable to all property partitions.
The current procedures related to an action for partition, partition pending probate or administration of an estate, a petition for partition and the parties to such, the answer to a partition petition, and the prohibition of a counterclaim or joinder of claims to a partition petition are not changed by the bill.
The bill requires that personal property subject to a lien be partitioned by sale.
Partition of real and personal property owned by the same person may be partitioned in the same partition action.
Property may be partitioned by both sale and in kind in the same partition action.
Property that has been partitioned in kind, or the proceeds from a partition by sale, are subject to an order of the court until disposition of the rights in the property are fully vested.
The court may order the filing of an abstract, adjudicate the validity and priority of liens on a property, order a referee to take possession of a property, or issue an order to preserve a property subject to partition.
The bill requires that the court file an initial decree establishing the interest and shares of all owners of a property subject to partition.
The court shall appoint one referee unless the parties to the partition agree that more than one referee needs to be appointed.
This changes the current requirement that the court appoint three referees for a partition in kind and one or more referees for a partition by LSB 5498SV (2) 87 -18- ko/rj 18/22 S.F.
2175 sale.
The court shall order an appraisal conducted by three disinterested persons with knowledge of property valuations, or by a different method of valuation as agreed to by the owners of the property.
Currently, the court is not required to order an appraisal for a partition in kind, and for a partition by sale the appraisal is to be conducted by three disinterested freeholders.
The bill requires the court to direct the referee to file a report setting forth the referee’s recommendations for completing the partition.
A referee’s report is not currently required to be filed with the court.
For a partition in kind, the bill allows the referee to include owelty as part of the referee’s recommendation.
The bill defines owelty as an equitable remedy used in partition actions to equalize the lower value of property received by a party through the payment of moneys from a recipient of a higher value property.
Owelty is not currently allowed in partition actions.
The court may approve or disapprove the referee’s report, or order the property sold by partition by sale.
If the court approves owelty payments, the partition in kind cannot be completed until all owelty payments have been made.
Upon approving a partition in kind, the court shall file a decree describing each parcel of real property or article of personal property allotted to each owner and enter judgment against each property owner for their apportioned costs of the action.
A certified copy of the decree shall be filed with the county recorder and a copy provided to the county auditor in each county where the partitioned property is located.
The bill requires the referee to file a report with the court if the referee is unable to make a partition in kind as ordered by the court.
If such partition involves personal property, the court shall order a sale of the property without further notice.
If the partition involves real property, the court must set a hearing after which the court may order a partition by sale or order another disposition of the property.
LSB 5498SV (2) 87 -19- ko/rj 19/22 S.F.
2175 The referee’s report for a partition by sale must include a recommendation for the appropriate public or private sale process and a copy of the appraisal for the property.
The referee must provide notice of the sale by publication in a newspaper of general circulation in the counties where the property to be partitioned is located.
The referee must report all proposed sales to the court and the court may approve or disapprove such sales.
No real property shall be conveyed prior to approval of the court.
The bill requires property subject to partition to be sold free of liens, except those liens against the entire property.
Upon court approval, the referee must file a referee’s deed that has to be recorded in the counties where the partitioned property is located.
The bill requires the court to order a reasonable fee, taxed as costs, for the plaintiff’s attorney in a partition of real property.
In addition, if the plaintiff is the losing contestant in any contest arising from the partition action, the plaintiff’s attorney fees related to such contest shall not be taxed as costs.
This is a change from the current rule of civil procedure that requires such fees to be taxed against the losing contestant.
The bill does not change the court’s ability to order reasonable compensation for any appraisers, referees, and attorneys involved in a partition action.
The bill requires that such compensation shall be part of costs.
The court shall have a hearing on the referee’s final report.
Any payment of proceeds of less than $10,000 from a partition by sale that are to go to a minor who does not have a conservator appointed are to be paid to the minor’s parents, guardian, or an adult who resides with the minor.
The bill details procedures for partition in kind of heirs property as defined in the bill.
The bill provides that these provisions control in the event of a conflict with the general provisions of the new Code chapter.
In a partition action involving heirs property in which a cotenant has requested partition in kind, the bill requires LSB 5498SV (2) 87 -20- ko/rj 20/22 S.F.
2175 the court to issue an initial decree appointing a referee and ordering an appraisal.
After the referee files the appraisal, the court must conduct a hearing to determine the fair market value of the heirs property.
After the hearing the court must send notice of the fair market value to all cotenants of the heirs property.
If at that time a cotenant requests that the heirs property be partitioned by sale, the bill allows all other cotenants to elect to purchase the interest of a cotenant that has requested partition by sale of the heirs property.
The bill provides a specific time period in which a cotenant has to elect to purchase such interest, provides a determination of fractional ownership of each cotenant’s interest in the heirs property before and after purchase of such interest, provides the time frame for a cotenant to pay for an interest such cotenant has elected to purchase from another cotenant, and provides for reallocation of all cotenants’ interests in the heirs property based on the payments made, or not made, by the electing cotenants.
The bill allows a cotenant to petition the court to authorize the sale of the interest of a cotenant named as a defendant in the action who does not appear in the action.
If the court authorizes such sale, the value of the interest of the nonappearing cotenant shall be determined by the court.
If all payments are made by the electing cotenants, the court shall order the heirs property to be partitioned in kind unless the court determines that a partition in kind will result in great prejudice to the cotenants as a group.
The court is required to consider the totality of eight factors as detailed in the bill in making such a determination.
If the court orders the heirs property to be partitioned in kind, the partition shall be conducted per the partition in kind procedures detailed in the general provisions of the new Code chapter.
If the court orders the heirs property to be partitioned by sale, the partition shall be conducted per the partition by sale procedures as detailed in the general LSB 5498SV (2) 87 -21- ko/rj 21/22 S.F.
2175 provisions of the new Code chapter.
The bill repeals Code chapter 651, Code 2018.
LSB 5498SV (2) 87 -22- ko/rj 22/22
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Action History

  1. Signed by Governor.

  2. Reported correctly enrolled, signed by President and Speaker, and sent to Governor.

  3. Message from House.

  4. Immediate message.

  5. Passed House, ayes 99, nays 1.

  6. Placed on calendar under unfinished business.

  7. Committee report, recommending passage.

  8. Subcommittee recommends passage.

  9. Subcommittee: Rizer, Hein and Meyer.

  10. Read first time, referred to Judiciary.

  11. Message from Senate.

  12. Immediate message.

  13. Passed Senate, ayes 48, nays 0.

  14. Committee report, approving bill.

  15. Introduced, placed on calendar.

Sponsorship breakdown

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0 sponsors · 0 co-sponsors · 150 not signed on

Sponsors (0)

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Co-sponsors (0)

None.

Not signed on (150)

150 members have not signed on to this bill.

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"Not signed on" means a member has not sponsored or co-sponsored this bill — it does not imply opposition. Members flagged Voted No have a recorded No vote on this bill.

Whip count is in markup. Polling the chamber and every recorded vote this session. Only the first open is slow. It’s instant for you after this. Calling the roll · Tallying · Engrossing

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This bill has been enacted into law. Introduced February 05, 2018. Enacted.
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