Introduced Version




SENATE BILL No. 379

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DIGEST OF INTRODUCED BILL



Citations Affected: IC 32-17-4; IC 32-23-12.

Synopsis: Partition of land. Allows persons who hold land in joint tenancy or tenancy in common to compel the sale of the land if all of the persons who hold an interest in the land cannot agree on the partition of the land. Requires the sale of the land to be held at a public auction advertised and conducted by a licensed auctioneer. Repeals provisions concerning the compelled partition of land by persons who hold land in joint tenancy or tenancy in common. Makes conforming amendments.

Effective: July 1, 2010.



Kruse


    January 12, 2010, read first time and referred to Committee on Judiciary.




Introduced

Second Regular Session 116th General Assembly (2010)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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SENATE BILL No. 379


    A BILL FOR AN ACT to amend the Indiana Code concerning property.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 32-17-4-1; (10)IN0379.1.1. -->     SECTION 1. IC 32-17-4-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 1. (a) The following persons may compel partition the sale of land held in joint tenancy or tenancy in common as provided under this chapter: if all of the persons who hold an interest in the land cannot agree on the partition of the land:
        (1) A person that holds an interest in the land as a joint tenant or tenant-in-common either:
            (A) in the person's own right; or
            (B) as executor or trustee.
        (2) If the sale of the estate of a decedent who held an interest in the land as a joint tenant or tenant in common is necessary, the decedent's administrator or executor.
    (b) A trustee, an administrator, or an executor may be made a defendant in an action for the partition of real estate to answer as to any interest the trustee, administrator, or executor has in the real estate.
SOURCE: IC 32-17-4-2; (10)IN0379.1.2. -->     SECTION 2. IC 32-17-4-2 IS AMENDED TO READ AS

FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 2. (a) A person described in section 1(a) of this chapter may file a petition to compel partition the sale of the land in the circuit court or court having probate jurisdiction of the county in which the land or any part of the land is located.
    (b) A petition filed under subsection (a) must contain the following:
        (1) A description of the premises.
        (2) The rights and titles in the land of the parties interested.

SOURCE: IC 32-17-4-4; (10)IN0379.1.3. -->     SECTION 3. IC 32-17-4-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 4. (a) If:
        (1) upon after a trial; of any issue;
        (2) upon default; or
        (3) by consent of the parties;
the court determines that all the persons who hold an interest in land cannot agree on the partition should be made, of the land, the court shall award an interlocutory judgment that partition be made to parties who desire partition.
    (b) In issuing a judgment under subsection (a), the court shall:
        (1) specify the share assigned to each party; and
        (2) take into consideration advancements to heirs of a person dying intestate.
    (c) If the court issues a judgment under subsection (a), any part of the premises remaining after the partition belongs to the persons entitled to the premises, subject to a future partition.
    (d) If:
        (1) upon trial of any issue;
        (2) upon default; or
        (3) by confession or consent of parties;
the court determines that the land for which partition is demanded cannot be divided without damage to the owners, the court may order the whole or any part of the premises to be advertised and sold as provided under section 12 of this chapter. at a public auction by an auctioneer licensed under IC 25-6.1.
    (b) An auctioneer who conducts an auction under this section may sell the land:
        (1) as a single tract of land; or
        (2) in any combination of two (2) or more tracts of land.
    (c) After payment of the costs and expenses of an auction conducted under this section, the remaining proceeds of the sale shall be paid:
        (1) under the direction of the court; and
        (2) to the persons entitled to the proceeds according to their

respective interests in the land.
    (d) If a trial is conducted under subsection (a)(1):
        (1) all persons described in section 1 of this chapter shall be made parties to the action; and
        (2) a party who opposes the sale of the land under this chapter has the burden of proof to show by a preponderance of the evidence that all of the persons who hold an interest in the land are able to agree on the partition of the land.

SOURCE: IC 32-17-4-15; (10)IN0379.1.4. -->     SECTION 4. IC 32-17-4-15 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 15. (a) If the court determines that:
        (1) land is sold under section 12 of this chapter for cash; or
        (2) land is sold under section 12 of this chapter for partial credit and that the first or cash payment of the purchase price is paid;
the court shall order the commissioner appointed under section 14 of this chapter, or some other person, to execute a conveyance to the purchaser.
    (b) A conveyance made under this section chapter bars all claims of the prior owners of the land as if the prior owners had executed the conveyance.
    (c) If partial credit is given for land sold under section 12 of this chapter, the court shall, at the time the court orders the conveyance to be made under this section, also order and direct that, concurrently with the execution of the conveyance, the purchaser shall execute to the commissioner a mortgage upon the land to secure the deferred payments of the purchase price of the land.
    (d) The commissioner shall place a mortgage executed under this section upon record as required by law.
SOURCE: IC 32-17-4-21; (10)IN0379.1.5. -->     SECTION 5. IC 32-17-4-21 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 21. (a) If a trial is conducted under section 4 of this chapter, all costs and necessary expenses of the trial, including reasonable attorney's fees, for plaintiff's attorney, in an amount determined by the court, shall be awarded and enforced in favor of the prevailing parties. entitled to the costs and expenses against the partitioners.
    (b) The court shall assign costs and expenses awarded under subsection (a) against each partitioner nonprevailing party as the court may determine in equity, taking into consideration each partitioner's nonprevailing party's relative interest in the land. or proceeds apportioned.
SOURCE: IC 32-23-12-1; (10)IN0379.1.6. -->     SECTION 6. IC 32-23-12-1, AS ADDED BY P.L.94-2009, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE

JULY 1, 2010]: Sec. 1. This chapter does not do the following:
        (1) Provide an exclusive basis by which a joint owner in coal or a lessee of the coal owner may enjoy their estate in the coal land.
        (2) Diminish the rights of a joint owner of coal or a lessee of the coal owner under common law.
        (3) Diminish the appurtenant rights of a coal owner.
        (4) Prohibit a joint owner from filing a petition for partition sale under IC 32-17-4, provided that if the petition for partition sale is filed in accordance with and subject to IC 32-23-12-9(d).
        (5) Prohibit any entity with eminent domain powers from acquiring all or a portion of the coal land by exercise of eminent domain powers.

SOURCE: IC 32-23-12-9; (10)IN0379.1.7. -->     SECTION 7. IC 32-23-12-9, AS ADDED BY P.L.94-2009, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 9. (a) The trustee shall:
        (1) enter into negotiations with the plaintiff;
        (2) execute a coal lease in favor of the plaintiff covering the interest of the defendant that reflects the findings and judgment of the circuit or superior court; and
        (3) promptly prepare and file a report of the coal lease stating the terms of the lease and the payments received for the lease and give notice to all parties appearing of record.
    (b) The circuit or superior court shall review the coal lease under subsection (a) to determine if the sale is in accordance with the court's findings and judgment. If the circuit or superior court approves the sale of the coal lease, the court shall:
        (1) issue an order confirming the sale; and
        (2) issue an order terminating the trust.
    (c) If, before an order confirming the lease pursuant to subsection (b) is issued, a party to the proceedings files, in accordance with subsection (d), a petition for partition sale under IC 32-17-4 applicable to the coal land, whether solely for the coal estate or for estates in the subject land in addition to and including the coal estate, the proceedings under this chapter shall be stayed during the pendency of the proceeding initiated under IC 32-17-4, and upon any final order of partition or sale in that procceding, proceeding, the proceedings under this chapter shall be terminated.
    (d) Any petition for partition sale under IC 32-17-4 applicable to the coal land filed during the pendency of any petition filed under this chapter shall be filed in the same court exercising jurisdiction over the petition filed under this chapter. If any defendant in a proceeding under this chapter files during the pendency of any proceeding under this

chapter a petition for partition sale under IC 32-17-4 applicable to the coal land, and the petition for partition sale is subsequently dismissed or terminated prior to a final order of partition or sale, the same defendant may not refile a subsequent petition for partition sale applicable to the coal land under IC 32-17-4 until the proceedings under this chapter are concluded.
    (e) If a petition for partition sale is filed under IC 32-17-4 after an order confirming a lease pursuant to subsection (b) has been issued, any land partitioned or sold shall be partitioned or sold subject to the lease.

SOURCE: IC 32-17-4-3; IC 32-17-4-5; IC 32-17-4-6; IC 32-17-4-7; IC 32-17-4-8; IC 32-17-4-9; IC 32-17-4-10; IC 32-17-4-11; IC 32-17- 4-12; IC 32-17-4-13; IC 32-17-4-14; IC 32-17-4-16; IC 32-17-4-17; IC 32-17-4-18; IC 32-17-4-19; IC 32-17-4-20; IC 32-17-4-22; IC 32- 17-4-24.
; (10)IN0379.1.8. -->     SECTION 8. THE FOLLOWING ARE REPEALED [EFFECTIVE JULY 1, 2010]: IC 32-17-4-3; IC 32-17-4-5; IC 32-17-4-6; IC 32-17-4-7; IC 32-17-4-8; IC 32-17-4-9; IC 32-17-4-10; IC 32-17-4-11; IC 32-17-4-12; IC 32-17-4-13; IC 32-17-4-14; IC 32-17-4-16; IC 32-17-4-17; IC 32-17-4-18; IC 32-17-4-19; IC 32-17-4-20; IC 32-17-4-22; IC 32-17-4-24.