Chapter 842

CHAPTER 842

PARTITION OF INTEREST IN REAL PROPERTY

842.01   Definitions.

842.02   Partition; plaintiffs.

842.03   Partition when state part owner; service of process.

842.04   Defendants.

842.05   Pleadings.

842.06   Water power referee.

842.07   Findings and conclusions; referee.

842.08   Platting.

842.09   Referee’s expenses.

842.10   Referee’s report; partition not prejudicial.

842.11   Referee’s report; partition prejudicial.

842.12   Hearing on report.

842.13   Report may be set aside.

842.14   Judgment of partition.

842.15   Judicial conveyance.

842.16   Costs and charges.

842.17   Interlocutory judgment of sale.

842.18   Notice and method of sale.

842.19   Report; confirmation of sale; final judgment.

842.20   Sheriff’s deed.

842.21   Costs, how paid.

842.22   Distribution of proceeds of sale.

842.23   Distribution; cancellation of liens.

842.24   Proceedings not to affect whom.

842.25   Share of individual adjudicated incompetent.

842.26   Investment of share of absentee.

842.27   Security to refund.

842.28   Securities, how taken.

842.29   Receipt and application of payments; account.

842.30   Collection of sum invested.

842.31   Statute of limitations not affected.

842.01 842.01 Definitions. As used in this chapter:

842.01(1) (1) “Interest in real property” in addition to the interests described in s. 840.01, includes rights and interests in water power, structures for the use of water power and structures for the utilization of riparian rights. Interests of vendees under land contracts are excluded.

842.01(2) (2) “Lien” includes encumbrance.

842.01 History History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 767, 782 (1975); Stats. 1975 s. 842.01.

842.02 842.02 Partition; plaintiffs.

842.02(1) (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.

842.02(2) (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.

842.02 History History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 767 (1975); Stats. 1975 s. 842.02; 1993 a. 486.

842.02 Annotation A “buy-out” agreement that lacked a termination date did not violate the 30-year limit. Schneider v. Schneider, 132 Wis. 2d 171, 389 N.W.2d 835 (Ct. App. 1986).

842.02 Annotation A limitation on partition can be implied or express. Equity dictates that a party claiming ownership under a will should be bound by reasonable restrictions in that will, including reasonable restraints on alienation. The general rule is that effect will be given to the intention of the testator as expressed in the will, and that no partition suit will lie before the date so fixed or the happening of the event named. If an heir disagrees with a restriction in a will, he or she is free to decline the bequest. Fohr v. Fohr, 2007 WI App 149, 302 Wis. 2d 510, 735 N.W.2d 570, 06-1559.

842.03 842.03 Partition when state part owner; service of process. If any lands are held by the state and by individuals as tenants in common, proceedings for the partition thereof may be had against the state in the same manner as against individuals, and the like orders and judgments shall be had therein, and the proportion of the costs and expenses of such partition, adjudged to be paid by the state, shall be certified by the attorney general and paid out of the state treasury on the warrant of the department of administration. The summons and all notices required to be served shall be served on the attorney general, who shall appear in behalf of the state and attend to its interest.

842.03 History History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 767 (1975); Stats. 1975 s. 842.03.

842.04 842.04 Defendants. Any cotenant not joined as a plaintiff must be joined as a defendant; if a judgment affecting the interest of any tenant, lienholder or person in physical possession is demanded, such person must be joined as a defendant.

842.04 History History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 767 (1975); Stats. 1975 s. 842.04.

842.05 842.05 Pleadings.

842.05(1) (1) The complaint shall describe the lands to be partitioned and the interests of all parties as far as the same are known to the plaintiff. If a lienholder is made a defendant, the lienholder’s lien shall be described.

842.05(2) (2) If the complaint does not demand partition of all the lands owned by the parties any of them may have the complaint amended so as to affect all the lands so owned.

842.05 History History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 767 (1975); Stats. 1975 s. 842.05; 1993 a. 486.

842.06 842.06 Water power referee. In an action concerning declaration or partition of rights to water power, the court may appoint a referee and empower the referee to examine into any matters complained of, and upon reasonable notice to the owners or occupants of water power to enter upon and take control of the mills, machinery, flumes, gates, wheels and other appurtenances of such water power and to exercise such reasonable control of the same for such reasonable time and in such reasonable manner as will enable the referee to ascertain the respective rights of the parties and to determine the manner of using, applying and preserving the same.

842.06 History History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 767 (1975); Stats. 1975 s. 842.06; 1993 a. 486.

842.07 842.07 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.

842.07 History History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 767 (1975); Stats. 1975 s. 842.07.

842.07 Annotation The homestead exemption may arise in a partition action. Reckner v. Reckner, 105 Wis. 2d 425, 314 N.W.2d 159 (Ct. App. 1981).

842.07 Annotation If the court’s findings and conclusions indicate as a matter of law that any partition would be prejudicial, the court need not appoint a referee and may order a sale under s. 842.17 (1). LaRene v. LaRene, 133 Wis. 2d 115, 394 N.W.2d 742 (Ct. App. 1986).

842.08 842.08 Platting. If the court determines that the interests of the parties will be promoted by surveying or platting the premises or any part thereof, it shall, by order, direct the plaintiff or the referee to survey or to make and acknowledge a plat of such premises or a designated part thereof or both; which plat, when made, approved by the court and recorded shall have the same effect and validity as if made by the parties pursuant to ch. 236. When such plat is so made, approved and recorded, partition or sale if ordered may be made in accordance therewith.