Md. R. Prop. Act'n 12-408

As amended through October 15, 2024

Rule 12-408 - Partition in Kind

(a) Initial Determination

(1) Generally

If all of the interests of the cotenants that requested partition by sale are not purchased by other cotenants pursuant to Rule 12-407, or, if after the conclusion of a buyout, a cotenant remains that has requested partition in kind, the court, after consideration of the factors listed in subsection (a) (2) of this Rule, shall order partition in kind unless it finds that partition in kind will result in great prejudice to the cotenants as a group.

(2) Statutory and Other Factors to be Considered by Court

In determining whether partition in kind would result in great prejudice to the cotenants as a group, the court shall consider the following, without giving undue weight to any individual factor:

(A) whether the property practicably can be divided among the cotenants;

(B) whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur;

(C) evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenants who are or were relatives of the cotenants or each other;

(D) the sentimental attachment of a cotenant to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant;

(E) the lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property;

(F) the degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and

(G) any other relevant factor.

(3) Request to Combine Individual Interests

The court shall approve a written request by two or more parties to have their individual interests in the property combined.

(b) Partition Procedure

(1) Writ of Survey

Following an order requiring partition in kind, the court shall issue a writ of survey pursuant to Rule 12-101 for the property to be partitioned in kind.

(2) Selection of Surveyor

If the parties agree on a single surveyor, the court shall issue the writ of survey to that surveyor. If the parties do not agree on a single surveyor, the court shall issue a writ of survey to a disinterested surveyor chosen by the court.

(3) Contents of Survey

The survey shall describe the property by metes and bounds and shall locate all improvements on a survey plat of the property. If the parties agree on lines of division, those lines shall be shown on the plat. If the parties do not agree upon lines of division, the court appointed surveyor shall prepare a plat dividing the property in kind adopting lines of division in accordance with the writ of survey and in accordance with local law.

(4) Survey to be Filed With Clerk

The surveyor shall file the survey and plat with the clerk who shall send notice of the filing to each party.

(5) Objection to Survey

(A) Deadline to Object

An objection to the survey or the survey plat shall be filed no later than thirty days after the clerk sends notice.

(B) No Objection to Survey Received

If no objections are filed to the survey and plat showing division, the court shall order partition in kind pursuant to the agreed division shown on the survey plat.

(C) Objection to Survey Received

If the parties were not able to agree on lines of division, the court shall conduct a hearing to consider each party's concerns, and enter an order approving the survey or instructing the surveyor to make changes to the plat to make the lines of division the court determines to be fair and equitable.

(6) Order of Partition

The order of partition shall approve a final plat showing the lines of division for recordation in the case and among the land records.

(c) Post Hearing Action By Court

(1) Partition in Kind Ordered by Court

If the court orders partition in kind, the court may require that one or more cotenants pay one or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held. The court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment, if their interests were not purchased by other cotenants pursuant to Rule 12-407, a portion of the property representing the combined interest of these cotenants as determined by the court and this portion of the property shall remain undivided.

(2) Partition in Kind Not Ordered by Court

If the court does not order partition in kind, the court shall either order partition by sale pursuant to Rule 12-409 or, if no cotenant requested partition by sale, dismiss the action.

Md. R. Prop. Act'n 12-408

This Rule is new.

Adopted April 21, 2023, eff. 7/1/2023.

See Code, Real Property Article, §§ 14-709 - 14-710.