Kansas Partition Actions - “Interested Parties” Are Not Always Necessarily Entitled To Notice

In real property law, a partition describes a legal action that divides up a co-tenancy into separate portions with the result that each co-tenant owns a particular part of the tract.  Any co-tenant who owns an undivided interest in land can seek a partition.  While it is possible that the parties can agree to a specific division of the land, many times that isn’t possible and a court will decide how to divide the property.  In that event, the court can award three types of partition - partition in kind,partition by allotment, and partition by sale. A partition in kind is a division of the property itself among the co-owners.  That means that each co-owner ends up owning a particular part of the entire tract.  In some jurisdictions, a partition by allotment is available and results in the court awarding full ownership of the land to a single owner or subset of owners, and they have to pay the other former co-owners for the interest that they had owned.  A partition by sale constitutes a forced sale of the land, followed by division of the profits among the tenants. Generally, the court is supposed to order a partition sale only if the land cannot be physically divided, although this determination often rests on whether the economic value of the divided pieces is less in the aggregate than the value of the parcel as a single piece.  In Kansas, notice of a partition action must be given to all real property owners who legal rights are directly and adversely affected by the action. The legal question involved in this case was whether due process requires that notice of a partition action be given to other co-owners of the property, even if there is no adverse affect to their property interest.

This case involved a partition action for a tract of real estate involving both surface right and sub-surface rights (i.e., mineral rights).  The matter was complicated because not all of the co-owners had ownership interests in both the surface estate and the sub-surface estate.  The plaintiffs sought to quiet title to a parcel they acquired via a Sherriff’s deed in 1974. The tract at issue had been passed down through four generations. After several transfers of the tract, one family ended up owning the surface rights, but the mineral rights were divided between the family and several other parties.

In 1953, the entire tract was transferred from a mother’s estate to her heirs. The surface rights were deeded to one son. The mineral rights were deeded, in equal portions, to five individuals, including the son who owned the surface rights. A few years later, the son deeded half of his interest in the surface and mineral rights to his wife. Thus, the wife owned 50% of the surface and 10% of the mineral rights. When the son died, his interest passed to three children and five grandchildren.  So, the son’s heirs owned fractional shares of 50% of the surface and 10% of the mineral rights. In 1972, the wife passed her ownership interest to one of the children.

In 1973, the other children instituted a partition action and moved to set aside their mother’s transfer of her interest in the tract to their brother. The only co-owners that were notified of the partition action were the surface owners, the heirs (who inherited 20% of the mineral rights), and a few other parties deemed “of interest.”  The co-owners of subsurface mineral rights were deemed uninterested and were not notified.

During the pendency of the 1973 case, the owners of an additional 30% of the mineral rights on the tract disclaimed their interests. Thus, 50% of the owners of mineral rights on the tract were not given notice of the partition action. In the end, the trial court partitioned the property and sold all of the surface interest and 50% of the mineral rights at auction. The plaintiff prevailed at the auction and a sheriff’s deed was issued to the plaintiff in 1974. The deed recited the legal description of the tract. Unfortunately, it did not mention the division of mineral interests on the tract.

Thirty-two years later, the remaining co-owners of the mineral rights questioned the plaintiff’s ownership rights. The plaintiff filed this action to quiet title to all 100% of the surface rights and 50% of the mineral rights on the tract.
 
At trial, the defendants (owners of the remaining mineral rights) argued that the plaintiff did not have any ownership rights in the tract, because the 1974 sheriff’s deed was void. They further argued that the court in the original partition action violated the Kansas “unity of partition rule,” because only 20% of the co-owners of the mineral rights were properly notified of the partition action. The “unity of partition” rule requires notification to co-owners whose rights would be adversely affected by court-ordered partition. A violation of the rule constitutes disregard for due process under the law.  The defendants also argued that the Sheriff’s deed was defective because it made no mention of the breakdown of mineral interests on the tract.

The trial court found for the plaintiff on all counts. The court found that the Sherriff’s deed had conveyed all of the surface rights and 50% of the mineral rights to the plaintiff (20% subject to partition and 30% disclaimed). Lack of notice to co-owners was not enough to set aside the partition, because the co-owners had no interest in the disputed portions of the tract. The trial court mentioned in its opinion that allowing a challenge to the court’s ruling of 30 years ago is contrary to the legal principle of “finality of litigation.”  The Kansas Supreme Court agreed to hear the case.

On the notice issue, the Court noted that the version of the Kansas partition statute (K.S.A. § 60-1003) in effect in 1973 required that the petition for partition describe the property (legal description) and the interests of the owners, if known. It also required if any interests were unknown, they should be set out in the petition “with reasonable certainty.  That version of the statute remains largely unchanged to this day.  While the defendants argued that the partition statute required “mandatory joinder” of all owners of the “entire tract”- meaning that each and every owner with an interest should have been notified, the Court disagreed.  The Court held that all parties are not necessary to a partition action.  Instead, only the parties who stand to be adversely affected by a partition are necessary parties.  The defendants cited several Kansas opinions in support of the notion of “mandatory joinder.”   However, the Court distinguished each of these cases, noting that joinder is not required unless the interests of non-joined parties are “so intertwined with the property subject to partition that their interests will be adversely affected…”.   While some state law expressly requires notification of all joint tenants and tenants in common or all others having an interest in the property in a partition action, the Kansas statute does not expressly require joinder of all parties.

As for whether the trial court had the jurisdiction to order the partition in 1973. The Kansas Supreme Court found that the trial court had the authority to partition and sell 100% of the surface rights and 50% of the mineral rights (some of which had been disclaimed). The court held that there was no taking of non-joined parties’ property interests and, as a result, no due process violation. The partition order was valid and would not be disturbed after 30 years. Though the Sheriff’s deed contained no iteration of mineral rights on the property, it effectively passed 50% of the rights.

In addition, the Court determined that the trial court properly granted summary judgment in favor of the plaintiff.  The defendants argued that there were several outstanding disputed facts that were ripe for jury consideration, but the defendants did not clearly explain why those facts needed to be resolved.  McGinty v. Hoosier, No. 101,674, 2010 Kan. LEXIS 627 (Kan. Sup. Ct. Sept. 24, 2010).