The Vermont Statutes Online

Title 12: Court Procedure

Chapter 179: Partition of Real Estate

• § 5161. Who may have partition

  A person having or holding real estate with others, as joint tenants, tenants in common, or coparceners, may have partition thereof.

• § 5162. Partition of a spring

  There may be partition of real estate containing a spring, and of the right to use the water of such spring, in the same manner as other real estate. The commissioners shall equitably apportion the use of such water and the manner of its use.

• § 5163. Complaint and summons; venue

  A person designated in section 5161 of this title may, by serving a complaint and summons on all persons interested in the estate, bring an action to partition the real estate in the Superior Court of the county where the real estate or any part thereof is situated. The complaint shall state the title by which the real estate is held, the names of the several owners, as far as known, and a particular description of the premises. (Amended 1971, No. 185 (Adj. Sess.), § 149, eff. March 29, 1972; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

• §§ 5164-5168. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 5169. Judgment for plaintiff; commissioners; waiver

  (a) When the issue is determined in favor of the plaintiff, or if the person interested defaults, the court shall render judgment that partition be made and appoint three disinterested residents of the county as commissioners. The commissioners shall make partition of the estate and set off each share of the several persons interested, according to their respective titles, and shall award to the plaintiff reasonable costs against the adverse party.

  (b) Notwithstanding subsection (a) of this section, the parties may, with the approval of the court, waive the use of commissioners and have all matters decided by the court at a bench trial. (Amended 1971, No. 185 (Adj. Sess.), § 150, eff. March 29, 1972; 2019, No. 40, § 2.)

• § 5170. When defendant prevails in whole or in part

  When, on trial, it is determined that the plaintiff has no right or share in the estate claimed, or that he or she holds a smaller share than alleged in his or her complaint, the adverse party shall recover against him or her reasonable costs. If the plaintiff holds a smaller share than claimed in his or her complaint, the judgment shall be that partition of the estate be made according to the title of the respective owners. (Amended 1971, No. 185 (Adj. Sess.), § 151, eff. March 29, 1972.)

• § 5171. Notice by commissioners; oath; partition

  The commissioners shall give notice to each party interested or to his or her agent or attorney of the time when they will make such partition. Such commissioners shall be sworn and shall make partition of the estate by dividing and setting out to each owner his or her share thereof by metes and bounds.

• § 5172. Report; judgment

  Having made partition, the commissioners shall make return to the court of their doings, with a description of each portion of the estate set off, and a certificate of their having been sworn. Unless cause is shown, such report shall be accepted by the court and judgment rendered thereon.

• § 5173. Recording of report and judgment; effect

  A certified copy of the report of the commissioners, with the judgment of the court accepting the same thereon, shall be recorded in the office where by law a deed of such estate is required to be recorded, and, when so recorded, shall give such owner his or her share of the estate so set off in severalty.

• § 5174. Assignment or sale of estate—assignment to party

  When it appears that the real estate, or a portion thereof, cannot be divided without great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided he or she pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable.

• § 5175. Sale, when ordered

  In case one of the parties interested will not take such assignment and pay such sum, the court shall order the commissioners to sell such estate at public or private sale.

• § 5176. Sale and conveyance

  The commissioners shall sell the estate agreeably to the order and execute conveyances to the purchaser thereof, which shall be a complete bar against the owners and persons claiming under them. (Amended 1971, No. 185 (Adj. Sess.), § 152, eff. March 29, 1972.)

• § 5177. Disposal of proceeds

  The commissioners shall pay the proceeds of the sale to the several parties interested or their representatives, as the court directs, first deducting such sum as is allowed by the court for the plaintiff’s costs, which shall be paid the plaintiff. (Amended 1971, No. 185 (Adj. Sess.), § 153, eff. March 29, 1972.)

• § 5178. New partition—when ordered

  When an owner of a share in the estate who is not an inhabitant of the State at the commencement of the action and has not been given personal notice of the action and thinks himself or herself aggrieved by the partition, he or she may within three years after the making of the order, bring a new action in the court which made the order of partition. Notice shall be given persons interested, in the same manner as directed in the original action. Upon sufficient cause being shown, the court may order a new partition thereof or make such other order as appears just. (Amended 1971, No. 185 (Adj. Sess.), § 154, eff. March 29, 1972.)

• § 5179. How made

  When a new partition is ordered, more shall not be taken from any share or right than as such share or right is adjudged more than the proportion for which it was set off, estimating such estate as in the situation and at the time when it was first divided.

• § 5180. Pay for improvements

  When improvements have been made after the first partition on the share which it set off by such new partition, the party who made such improvements shall have reasonable satisfaction from the owner to whose share the same is added, to be estimated by the commissioners making such new partition, and the court may issue execution therefor.

• § 5181. Fees of commissioners—how fixed and paid

  When partition is made of real estate under this chapter, the commissioners shall be allowed such sum for their services and expenses as the court judges reasonable, which shall be paid by the parties as directed by the court. The costs allowed the plaintiff shall be paid by the owners of the estate in proportion to their respective rights therein. (Amended 1971, No. 185 (Adj. Sess.), § 155, eff. March 29, 1972; 1975, No. 191 (Adj. Sess.).)

• § 5182. Party’s share sold if he or she does not pay

  When any such owner does not pay his or her proportion of such costs, the court shall direct so much of his or her share of the estate to be sold at public auction as is sufficient to pay the same, with costs of sale.

• § 5183. Conveyance on sale

  On such sale, the commissioners shall execute conveyances to the purchaser, who shall hold such estate by virtue thereof against such owner or persons claiming under him or her.

• § 5184. Purchase by or for commissioners prohibited

  A commissioner, or other person in trust for him or her, shall not become a purchaser at a sale under this chapter.

• § 5185. Conveyance before service of complaint

  A partition of real estate made under this chapter shall not be avoided in consequence of a conveyance by an owner of a part of the estate of his or her interest therein executed prior to the service of the summons and complaint, unless it appears that the plaintiff had knowledge of the conveyance or that it was recorded according to law at the time the complaint was served or notice given as hereinbefore provided. (Amended 1971, No. 185 (Adj. Sess.), § 156, eff. March 29, 1972.)

• § 5186. Shares set off shall inure to use of owner

  In making such partition, if a share or right in the estate is set off or assigned to a person other than the legal owner, such share shall inure to the use and benefit of the legal owner, his or her heirs and assigns, as though the same had been set off or assigned to him or her.

• § 5187. Commissioner disqualified, others may act

  When a commissioner appointed under this chapter dies, becomes unable to perform his or her duties due to a mental condition or psychiatric disability, removes from the State, or becomes otherwise disqualified to act, the survivors may exercise the powers granted to the whole number. (Amended 2013, No. 96 (Adj. Sess.), § 49.)

• § 5188. Death or nonjoinder of part owner

  An action for the partition of real estate shall not be dismissed or proceedings thereon suspended in consequence of the death of an owner or person interested in the estate, or because all the parties interested in the estate are not named in the complaint. In the event of the death of an owner or person interested in the estate, that owner’s right or share shall be set off to his or her legal representatives. If all the parties interested in the estate are not named in the complaint, every such party not named in the complaint shall have his or her name entered therein and his or her right or share set off and allotted to him or her in proportion to his or her interest in the estate. (Amended 1971, No. 185 (Adj. Sess.), § 157, eff. March 29, 1972.)