Real Estate Litigation

Often yes — that is what partition is for. Section 528.030, RSMo permits any one or more of the interested parties to petition, and no co-owner is required to remain in a co-ownership. The court divides the land in kind if that can be done without great prejudice to the parties; if it cannot — which is usually the answer for a single house on a city lot — § 528.340 authorizes a sale and division of the proceeds. The important exception is heirs’ property. If the land came down through a family and meets the § 528.700 definition, the Save the Family Farm Act gives the other cotenants a statutory right to buy out whoever filed for sale before any sale can occur. Establishing that the property is heirs’ property is therefore the first move in any family land case.

A defined term with four parts, all of which must be true when the partition action is filed. Under § 528.700, RSMo: the property is held in tenancy in common; there is no agreement in a record binding all the cotenants that governs partition; one or more cotenants acquired title from a relative, living or deceased; and at least one of these applies — twenty percent or more of the interests are held by cotenants who are relatives, or twenty percent or more are held by an individual who acquired title from a relative, or twenty percent or more of the cotenants are relatives. Two consequences follow. Property held in joint tenancy is outside the Act entirely. And a recorded co-ownership agreement covering partition takes the property out of the Act — which cuts both ways, and is worth thinking about before one is signed.

Sequentially, and the dates are unforgiving. First the court determines the property is heirs’ property (§ 528.705.2). Then it fixes fair market value, normally by ordering a certified appraisal from a disinterested Missouri-licensed appraiser valuing the property as if solely owned (§ 528.720) — notice within ten days, objections within thirty days of notice, and a valuation hearing held whether or not anyone objects. Then, if a cotenant has requested a sale, § 528.725 gives every other cotenant 45 days to elect to buy that interest, at the whole-parcel value times the selling cotenant’s fraction — no minority discount. Where several elect, the right is apportioned pro rata. Payment into court is due on a date no sooner than sixty days after notice, and if some pay and others do not, those who paid get another twenty days to take up the rest. Missing an election or payment date forfeits the right.

Not necessarily, and this is the Act’s second protection. Under § 528.730.1, the court shall order partition in kind unless it finds, after weighing the § 528.735 factors, that partition in kind would cause great prejudice to the cotenants as a group — and cotenants who want to stay may ask to have their interests aggregated, which the court must approve. If a sale is nonetheless ordered, § 528.740 requires an open-market sale through a licensed broker at a price no lower than the court-determined value, unless the court finds sealed bids or an auction more advantageous. That price floor is the difference between market value and a distress sale, and it is the single most valuable thing in the statute.

For heirs’ property, § 528.735, RSMo lists them and requires the court to consider each: whether the property can practicably be divided among the cotenants; whether division would leave the parcels worth materially less in the aggregate than a sale of the whole, taking into account the conditions of a court-ordered sale; the collective duration of ownership or possession by a cotenant together with relative predecessors; a cotenant’s sentimental attachment, including attachment arising because the property has ancestral or other unique or special value; the lawful use a cotenant is making of the property and the degree of harm from losing that use; the degree to which each cotenant contributed their pro rata share of taxes, insurance and other ownership expenses or contributed to improvements and upkeep; and any other relevant factor. Subsection 2 forbids treating any single factor as dispositive. For ordinary (non-heirs) partition, the statutory question is simply whether division can be made without great prejudice to the owners.

Generally yes, in the partition accounting. Missouri courts have held that a party to a partition proceeding is entitled to reimbursement for expenditures on the property for taxes, insurance, and necessary repairs and improvements — Tadych v. Horner, 336 S.W.3d 174 (Mo. App. W.D. 2011) — with reimbursement typically effected by offsetting those expenditures against the sale proceeds. Improvements carry a stricter test: they must have been made in good faith, been necessary and substantial, materially enhanced the property’s value, and reimbursement must be equitable in the circumstances. Two limits matter. Contributions are recoverable only for expenses paid after the tenancy in common was established, not before. And the accounting runs both ways — an out-of-possession cotenant may be credited with a share of the reasonable rental value of the property during another cotenant’s exclusive possession, measured without the improvements the possessor made. Keep the receipts from the first day.

They come out of the property, not out of one side. Section 528.530, RSMo directs the judge to allow a reasonable fee to the attorney bringing the suit, and to make a reasonable allowance to any guardian ad litem, “which fee and allowances shall be taxed and paid as other costs in the case.” Rule 96.30 is the parallel provision and adds the sheriff’s or commissioner’s costs. The important qualification is judicial: Missouri courts have generally limited the statutory allowance to the work that would be required in an uncontested partition — the common-benefit work of preparing orders, deeds and disbursements — with an exception where a defendant has been uncooperative and unduly litigious. Tadych denied additional appellate fees because the appeal rested on a legitimate claim of error. So a contested partition is not a fee-shifting case; each side largely funds its own fight.

It is the statutory action to have a court determine ownership. Section 527.150.1, RSMo lets any person claiming any title, estate or interest in real property — legal or equitable, certain or contingent, present or in reversion or remainder, in possession or not — sue anyone claiming an interest, to “ascertain and determine” and “define and adjudge” the parties’ respective interests. Subsection 2 lets the court award “full and complete relief, whether legal or equitable” if it is asked for in the pleadings. What you must prove is title superior to the other parties in the case — not perfect title against the world. The action is tried to the court and reviewed under Murphy v. Carron. And note the costs rule at § 527.170: if the defendants default or consent, the plaintiff pays the costs.

File a lis pendens. Under § 527.260, RSMo, in any civil action based on an equitable right, claim or lien affecting or designed to affect real estate, the plaintiff files with the recorder of the county where the land lies a written notice of the pendency of the suit — naming the parties, the style of the action, and describing the property. From that filing, and only from that filing, the pendency of the suit is constructive notice to purchasers and encumbrancers, who then take subject to whatever the court decides. It does not freeze the property; the owner can still convey. What it does is destroy any buyer’s claim to be a purchaser without notice, which as a practical matter stops a sale, because no title insurer will write over it. Note the statutory scope is tied to actions on an equitable right, claim or lien. Filing one without a genuine claim invites a slander of title action back at you, so it is not a pressure tactic.

Two things, together. First, clear the record: an action under § 527.150, RSMo to determine and adjudge the parties’ interests, producing a judgment that can itself be recorded. This matters because Missouri’s recording statutes give constructive notice of whatever is on record, so an invalid instrument does real damage even though it conveys nothing — it will stop a sale or refinance because a title insurer will except to it. Second, consider a claim for slander of title: some interest in the property, false published words, malicious publication, and pecuniary loss. Missouri courts have held that the attorney’s fees you spend clearing the disparaged title are recoverable as special damages, which is what makes the tort worth pleading — without that, the loss in a clean case is mostly the cost of fixing it. Move promptly; the evidence of malice is usually contemporaneous.

Five years from discovery, with a ten-year ceiling. Section 516.120(5), RSMo gives five years for “[a]n action for relief on the ground of fraud,” and provides that the cause of action is “deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.” So the clock starts when you discover the facts, but the discovery itself must occur within ten years of the fraud — a practical maximum of fifteen years, and far less in most cases because “discovery” includes what reasonable diligence would have revealed. If the claim is also pleaded in contract, the period is a live question rather than a given: contract actions are generally five years under § 516.120(1), but that subdivision is expressly subject to § 516.110(1), which gives ten years for an action “upon any writing…for the payment of money or property.” Which one governs a signed real estate contract depends on the instrument. Do not calculate this yourself.

Check the completion date first. Section 516.097, RSMo is a statute of repose: an action to recover damages for economic loss, personal injury, property damage or wrongful death arising out of a defective or unsafe condition of an improvement to real property must be commenced within ten years of the date the improvement was completed — or, where an occupancy permit was issued, ten years from the permit date. Unlike a limitations period, repose runs from completion regardless of when the defect appears, so a latent defect discovered in year eleven can be barred before anyone knew about it. But read the exceptions, because they are substantial. The section protects only those whose involvement was performing or furnishing the design, planning or construction; it expressly does not protect owners or possessors of the property; and it does not protect anyone who concealed a defect that directly caused the unsafe condition. A defendant sued near the deadline also gets one year to bring in others for contribution.

It depends on which action you are in, and that is a reason to think about the pleading. Partition is court-tried — Chapter 528 has no jury provision, § 528.010 frames it as an equity suit, and Missouri appellate courts review partition judgments under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Quiet title under § 527.150 is likewise tried to the court and reviewed on the same standard. Ejectment is different: it is an action at law, and § 524.130, RSMo expressly contemplates a jury assessing the value of rents and profits. Declaratory judgment actions have their own provision at § 527.090, under which fact issues are tried “in the same manner as issues of fact are tried and determined in other civil actions.” And because § 527.150.2 permits the court to award legal relief alongside a title determination, what else is joined to a title count can affect the answer.

When the delay makes it worse, when the record cannot be fixed by agreement, or when the value at stake justifies the cost — and often none of those is true. Three questions decide it honestly. Does time hurt you? Adverse possession and prescriptive easement clocks run whether or not anyone is watching, so an encroachment is one of the few property problems that gets legally worse by waiting. Is there a recordable fix? A boundary line agreement, a corrective deed, a release, a written licence, or a co-ownership agreement resolves a great many disputes for a fraction of the cost, and a reasonable neighbour will often sign one. What does the cloud actually cost? A defect that blocks a sale or a refinance has a definable price; one that offends you has none. Where the answer is that litigation is warranted, the first filings — the lis pendens, the heirs’ property determination, the theory pleaded — shape everything that follows, so they are worth getting right.