Subchapter B. PARTITION OF REAL PROPERTY


Rule


1551.    Form of Action.
1552.    Venue.
1553.    Parties.
1554.    Specific Averments.
1555.    Pleading More Than One Cause of Action.
1556.    Counterclaim.
1557.    Order Directing Partition. Post-Trial Relief.
1558.    Preliminary Conference. Appointment of Master.
1559.    Master. Hearing.
1560.    Property Capable of Division Without Prejudice.
1561.    Property Capable of Proportionate Division. Award.
1562.    Property Not Capable of Proportionate Division. Award.
1563.    Property Not Capable of Division Without Prejudice. Sale. Objections.
1564.    Life Estates.
1565.    Retention of Undivided Interests. Election. Parties Not Appearing.
1566.    Preliminary Determination. Notice to Accept or Reject. Private Sale Confined to Parties.
1567.    Private Sale Confined to Parties. Conduct. Confirmation.
1568.    Public Sale.
1569.    Master’s Report. Exceptions.
1570.    Decision and Order.
1571.    Trustees to Satisfy Liens and Charges.
1572.    Sale Not Confined to Parties.
1573.    Return of Sale and Schedule of Distribution.
1574.    Costs and Counsel Fees.

Rule 1551. Form of Action.

 Except as otherwise provided in this chapter, the procedure in an action for the partition of real estate shall be in accordance with the rules relating to the civil action.

Source

   The provisions of this Rule 1551 adopted April 26, 1955, effective November 1, 1955; amended December 16, 2003, effective July 1, 204, 34 Pa.B. 9. Immediately preceding text appears at serial page (255272).

Rule 1552. Venue.

 An action for the partition of real property, including an action in which the Commonwealth is a party, may be brought in and only in a county in which all or any part of any property which is the subject matter of the action is located.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1553. Parties.

 An action for partition may be brought by any one or more co-tenants. All other co-tenants shall be joined as defendants.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1554. Specific Averments.

 The complaint shall include

 (a)  a description of the property and

 (b)  a statement of the nature and extent of the interest of each party in the property.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1555. Pleading More Than One Cause of Action.

 (a)  The plaintiff may state in the complaint causes of action for the partition of all or any part of any properties in which the plaintiff and the defendants are co-tenants, irrespective of their location in the Commonwealth or of the proportion of the plaintiff’s interest in the several properties.

 (b)  If the rights of all the parties are derived from a common source of title, causes of action may be joined even though one or more of the defendants are co-tenants of less than all the properties.

Source

   The provisions of this Rule 1555 adopted April 26, 1955, effective November 1, 1955; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2274. Immediately preceding text appears at serial pages (223286) to (223287).

Rule 1556. Counterclaim.

 A defendant may counterclaim for the partition of any or all property which the plaintiff might have included in the complaint.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1557. Order Directing Partition. Post-Trial Relief.

 If the court determines that there shall be partition because of a default or admission or after a hearing or trial, the court shall enter an order directing partition which shall set forth the names of all the co-tenants and the nature and extent of their interests in the property. No exceptions may be filed to an order directing partition.

   Official Note

   Pennsylvania Rule of Appellate Procedure 311(a)(7) provides that an appeal may be taken as of right from an order directing partition.

   However, a motion for post-trial relief must be filed following trial to an order which does not direct partition or which disposes of a claim other than a claim for partition.

Source

   The provisions of this Rule 1557 adopted April 26, 1955, effective November 1, 1955; amended October 19, 1983, effective January 1, 1984, 13 Pa.B. 3629; amended July 28, 1995, effective January 1, 1996, 25 Pa.B. 3337; amended December 5, 1996, effective immediately, 26 Pa.B. 6068. Immediately preceding text appears at serial page (197727).

Rule 1558. Preliminary Conference. Appointment of Master.

 (a)  The court, after the entry of the order directing partition, shall direct the parties or their attorneys to appear for a preliminary conference to consider

   (1)  whether the parties can agree upon a plan of partition or sale;

   (2)  the simplification of the issues;

   (3)  whether any issues or matters relating to the carrying out of the order of partition shall be referred to a master; and

   (4)  such other matters as may aid in the disposition of the action.

 (b)  The court, at any time after the preliminary conference, may appoint a master to hear the entire matter or to conduct any sale, or to act upon only specified issues or matters relating to the carrying out of the order of partition.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1559. Master. Hearing.

 A master who is appointed by the court shall make such examinations and hold such hearings as may be necessary, giving reasonable notice thereof. The master may employ appraisers and, with the authorization of the court, such other experts as are necessary to enable the master to perform his or her duties.

Source

   The provisions of this Rule 1559 adopted April 26, 1955, effective November 1, 1955; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2274. Immediately preceding text appears at serial page (223288).

Rule 1560. Property Capable of Division Without Prejudice.

 If division can be made without prejudice to or spoiling the whole, the property shall be divided as follows:

 (a)  into as many purparts as there are parties entitled thereto, the purparts being proportionate in value to the interests of the parties;

 (b)  if it cannot be divided as provided in Subdivision (a), then into as many purparts as there are parties entitled thereto, without regard to proportionate value;

 (c)  if it cannot be divided as provided in Subdivisions (a) or (b), then into such number of purparts as shall be most advantageous and convenient without regard to the number of parties.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1561. Property Capable of Proportionate Division. Award.

 Property divided under Rule 1560(a) shall be awarded to the parties according to their respective interests.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1562. Property Not Capable of Proportionate Division. Award.

 Subject to acceptance or refusal and private sale among the parties as hereinafter provided, property not capable of division under Rule 1560(a) but capable of division under Rule 1560(b) or (c), shall be awarded equitably among the parties with appropriate provisions for owelty. Sums payable as owelty shall be secured and paid in such manner and time as the court shall direct.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1563. Property Not Capable of Division Without Prejudice. Sale. Objections.

 (a)  Except as otherwise provided in Subdivision (b), property not capable of division without prejudice to or spoiling the whole shall be offered for private sale confined to the parties.

 (b)  Parties defendant owning a majority in value of the property may object in writing to any sale, requesting that the property be awarded to them at its valuation fixed by the court and that their interests in the same remain undivided. Upon such request the entire property shall be awarded to the parties objecting to sale, as tenants in common, subject to payment to the parties desiring partition and sale of the amounts of their respective interests based upon the valuation. The amounts due the parties shall be charged as liens upon the property, to be paid in such manner and time as the court shall direct.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1564. Life Estates.

 Property subject to a life estate may be partitioned upon the entry of security as the court may direct conditioned upon the payment of annual rental value, interest or income of such property to the life tenant. If a life tenant is entitled to exclusive possession of any part of the premises subject to partition, the court may deny partition of that part or may direct partition subject to such exclusive right of possession.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1565. Retention of Undivided Interests. Election. Parties Not Appearing.

 (a)  The court shall permit the shares of any two or more co-tenants to remain undivided between them if they so elect by writing filed within such time as the court or master shall direct.

 (b)  The court may permit the shares of any two or more co-tenants who do not appear in the action to remain undivided between them.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1566. Preliminary Determination. Notice to Accept or Reject. Private Sale Confined to the Parties.

 (a)  Preliminary notice of the proposed partition and allotment of purparts under Rule 1560(b) or (c) or the inability to partition the property as provided under Rule 1563 shall be given to the parties in such manner as the court by local rule or special order shall direct.

 (b)(1)  The notice in the case of proposed partition under Rule 1560(b) or (c) shall require the parties within twenty days after service thereof to accept or reject the proposed plan of allocation. The notice in the case of inability to partition shall state that the property will be sold unless objection is made as provided in Rule 1563(b).

   (2)  The notice shall include a description of the property and the proposed partition, the valuation of the property as a whole and of the purparts, if any, into which it is proposed to be divided, the mortgages, liens, encumbrances or charges which affect the whole or any part of the property and the amounts due thereon. A plan or map of the proposed division of the property may be attached to the notice.

   (3)  In lieu of the detailed information set forth in Subdivision (2), the notice may specify a place within the county where the proposed plan and information may be examined.

 (c)  If any party rejects the proposed allotment of the purparts or if no objection is made to a sale under Rule 1563, the property shall be offered for private sale by open bidding confined to the parties to be held upon not less than twenty days’ notice.

Source

   The provisions of this Rule 1566 adopted April 26, 1955, effective November 1, 1955; amended November 14, 1978, effective December 2, 1978, 8 Pa.B. 3410; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2274. Immediately preceding text appears at serial pages (223289) to (223290).

Rule 1567. Private Sale Confined to Parties. Conduct. Confirmation.

 In any private sale confined to the parties, the property, if divided into purparts, shall be offered for sale both in purparts and as a whole to determine which will bring the greater price. No sale of the whole shall be confirmed unless the amount bid equals or exceeds the valuation of the whole fixed by the court. No sale of any purpart shall be confirmed unless the amount bid for such purpart equals or exceeds its valuation as fixed by the court. The award and allocation to the successful bidder shall be made subject to the payment of owelty where required.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1568. Public Sale.

 If a private sale of the property or of any purpart is not confirmed under Rule 1567, the property or purpart shall be sold at public sale or at private sale not confined to the parties, as the court may direct.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1569. Master’s Report. Exceptions.

 (a)  A master who is appointed by the court shall file a report with respect to the matters submitted. The report shall follow the form of decision in Rule 1570, insofar as the scope of the reference to the master permits.

 (b)  The master shall give all persons in interest written notice of the date on which he or she intends to file the report and proposed order and shall specify an address within the county where they may be examined. The master may change the report and proposed order as he or she deems proper before filing them, but if any changes are made written notice thereof shall be given to all parties.

 (c)  Within ten days after notice of the filing of the report exceptions may be filed by any party to rulings on evidence, to findings of fact, to conclusions of law and to the proposed order. The court may, with or without taking testimony, remand the report or enter a decision in accordance with Rule 1570 which may incorporate by reference the findings and conclusions of the master in whole or in part.

Source

   The provisions of this adopted Rule 1569 April 26, 1955, effective November 1, 1955; amended October 19, 1983, effective January 1, 1984, 13 Pa.B. 3629; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2274; amended December 16, 2003, effective July 1, 2004, 34 Pa.B. 9. Immediately preceding text appears at serial page (255277).

Rule 1570. Decision and Order.

 (a)  The decision shall include findings of fact as follows:

   (1)  whether the property is capable of division, without prejudice to or spoiling the whole, into purparts proportionate in value to the interests of the co-tenants;

   (2)  the number of purparts into which the property can be most advantageously divided, if partition proportionate in value to the interests of the parties cannot be made;

   (3)  the value of the entire property and of the purparts;

   (4)  the mortgages, liens and other encumberances or charges which affect the whole or any part of the property and the amount due thereon;

   (5)  the credit which should be allowed or the charge which should be made, in favor of or against any party because of use and occupancy of the property, taxes, rents or other amounts paid, services rendered, liabilities incurred or benefits derived in connection therewith or therefrom;

   (6)  whether the interests of persons who have not appeared in the action, or of defendants who have elected to retain their shares together shall remain undivided;

   (7)  whether the parties have accepted or rejected the allocation of the purparts or bid therefore at private sale confined to the parties; and

   (8)  whether a sale of the property or any purpart not confined to the parties is required and if so, whether a private or public sale will in its opinion yield the better price.

 (b)  The order shall include:

   (1)  an appropriate award of the property or purparts to the parties subject to owelty where required;

   (2)  if owelty is required, the amount of the awards and charges which shall be necessary to preserve the respective interests of the parties, the purparts for or against which the same shall be charged, the time of payment and the manner of securing the payments;

   (3)  the protection required for life tenants, unborn and unascertained remaindermen, persons whose whereabouts are unknown or other persons in interest with respect to the receipt of any interest; and

   (4)  a public or private sale of the property or part thereof where required.

Source

   The provisions of this Rule 1570 adopted April 26, 1955, effective November 1, 1955; amended December 16, 2003, effective July 1, 2004, 34 Pa.B. 9 . Immediately preceding text appears at serial pages ( 255277) to (255278).

Rule 1571. Trustees to Satisfy Liens and Charges.

 (a)  The court, upon motion of any party or person in interest, or upon recommendation of the master, may appoint a trustee to receive payment of

   (1)  any sum due any party or person in whose favor a lien exists and who is unknown or cannot be found;

   (2)  a principal sum necessary to secure the payment of any amount charged upon property to be partitioned;

   (3)  the purchase price of any property sold in partition which is subject to a life estate and remainder.

 (b)  The trustee shall, upon entry of such security as the court shall direct and upon payment of the sums decreed, be authorized to satisfy of record any lien, whereupon the property shall be freed and discharged from such lien.

   Official Note

   adopted April 26, 1955, effective November 1, 1955.

Rule 1572. Sale Not Confined to Parties.

 (a)  A sale not confined to the parties shall be conducted in such manner and upon such terms as the court shall direct by local rule or in the order of sale. It shall be subject to the power of the court to order a resale because of inadequacy of price.

 (b)  A public sale shall be held at such time and place as the court may direct. It shall be advertised in each county where any part of the property lies.

 (c)  A purchaser who is a party or a lien holder whose lien is discharged by the sale shall be allowed a credit equal to the amount of his or her distributive interest in the purchase price, less any charges assessed against him or her. The excess of the bid shall be paid in cash.

 (d)  If the court directs a master to conduct the sale, the master before accepting payment for the property shall file a bond in double the amount of the payment or in such lesser amount as shall be fixed by the court.

Source

   The provisions of this Rule 1572 adopted April 26, 1955, effective November 1, 1955; amended November 14, 1978, 8 Pa.B. 3410; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2274. Immediately preceding text appears at serial page (223292).

Rule 1573. Return of Sale and Schedule of Distribution.

 (a)  Where the sale has been conducted by a master, the master shall promptly file with the prothonotary a return of sale together with a proposed order which shall

   (1)  confirm the sale;

   (2)  authorize the master to execute and deliver to the purchaser all necessary deeds and other instruments of title;

   (3)  contain appropriate provisions for the protection of life tenants, unborn and unascertained remaindermen, persons whose whereabouts are unknown, or other persons in interest and for the release or discharge of such interests;

   (4)  direct distribution of the proceeds to the persons or parties entitled; and

   (5)  provide for the payment of costs.

 (b)  The master shall give all persons in interest written notice of the date on which he or she intends to file the return of sale and proposed order and shall specify an address within the county where they may be examined. The master may change the return of sale and proposed order as he or she deems proper before filing them, but if any changes are made written notice thereof shall be given to all parties.

 (c)  If the court approves the return of sale in whole or in part, the court shall enter an appropriate order. Any part of the order as to which a motion for post-trial relief is not filed within ten days shall become final.

Source

   The provisions of this Rule 1573 adopted April 26, 1955, effective November 1, 1955; amended October 19, 1983, effective January 1, 1984, 13 Pa.B. 3629; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2274; amended December 16, 2003, effective July 1, 2004, 34 Pa.B. 9. Immediately preceding text appears at serial pages (255279) to (255280).

Rule 1574. Costs and Counsel Fees.

 Costs shall be paid by the parties in proportion to their interests in the property. The compensation of appraisers, the master’s fee and compensation of experts authorized by the court shall be taxed as part of the costs. Reasonable counsel fees may be charged against the property or fund resulting therefrom, and apportioned among the parties and their counsel in such amount and manner as the court shall deem equitable.

   Official Note

   adopted April 26, 1955, effective November 1, 1955; amended September 1, 1958, effective forthwith.



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