How long will an action of partition take?

04/27/2009 - Wills and Estates - State: ALL #16172

Full Question:

How long will an action of partition take and what would the cost be? This is for settling a will on a house. It has been two years now and the lawyers are not helping, they are just going back and forth, so this seems to be the only way to settle this.

Answer:

I am unable to provide a time frame for a partition action, as procedures and schedules vary by court. Generally, a petition must be filed and a hearing is held after the appointed referee makes a report, containing recommendations for a resolution of the matter. Only after the referee makes a report and the hearing is held, may a court enter a judgment for partition. If the court finds that the land or any portion thereof is so situated that partition cannot be made without prejudice to the owners, and there are no tenants or lienholders, it may order the sheriff to sell the premises at public auction. I suggest calling the clerk of courts in the county where the property is situated to inquire about expected time frames, as it will depend on the scheduling of the court's docket.


The follwing are WI statutes:

842.02 Partition; plaintiffs.

  (1) A person having an interest in real property jointly or in common with others may sue for judgment partitioning such interest unless an action for partition is prohibited elsewhere in the statutes or by agreement between the parties for a period not to exceed 30 years.

  (2) The plaintiff in the plaintiff's complaint may demand judgment of partition and, in the alternative, if partition is impossible, judicial sale of the land or interest, and division of the proceeds. 842.07 Findings and conclusions; referee.

  On default and proof or after trial of issues, the court shall by findings of fact and conclusions of law determine the rights of the parties. If the basis for partition is clear, the court may enter judgment partitioning the interests. If the basis for partition is not clear, the court shall appoint a referee to report either a basis for partition, or the conclusion that partition is prejudicial to the parties. 842.12 Hearing on report.

  Notice of a hearing on the referee's report shall be given to all parties who have appeared.

842.14 Judgment of partition.

  (1) If the court has determined that partition is proper under s. 842.07 or on adoption by the court of a report recommending partition without sale, the court may order or render judgment of partition which shall be conclusive on all the parties to the action and their legal representatives and on all persons claiming or to claim from such parties or persons or any of them, subsequent to the filing of the notice of the pendency of the action.

  (2) Such judgment shall not affect the interests of lienholders or tenants, except that if a tenant obtained a lease from less than all of the cotenant owners, the tenant's lease shall be extinguished by the judgment, and the tenant shall have judgment for damages against the cotenant who granted the lease.

  (3) If partition is adjudged, existing liens shall not be affected or impaired, except that a lien upon an undivided interest or estate shall thereafter be a charge only on the share assigned to the party against whom it exists, which share shall be charged with its just proportion of the costs in preference to such lien.

  (4) If partition is adjudged, and if it appears that it cannot be made equal between the parties without prejudice to the rights or interests of some of them, the court may provide in its judgment that compensation be made by one party to the other for equality of partition, according to the equity of the case; and where any party has with the knowledge or assent of the others or any of them, made improvements upon lands partitioned, the portion of such lands upon which such improvements have been made may be allotted to such party without computing in their value the value of such improvements.

  (5) A copy of the judgment shall be recorded in each county in which any part of the premises are situated, and the expense of such copy and record shall be taxed in the costs.



Please see the information at the following links:

http://definitions.uslegal.com/c/civil-causes-of-action-partition/
http://definitions.uslegal.com/p/partition/
http://definitions.uslegal.com/d/docket/

04/27/2009 - Category: Wills and Estates - State: ALL #16172

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