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Kansas House Bill HB2693

Kansas 2023-2024 Regular Session

Kansas House Bill HB2693 Compare Versions

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11 Session of 2024
22 HOUSE BILL No. 2693
33 By Committee on Judiciary
44 Requested by Representative Waggoner on behalf of Melford Holmes
55 2-5
66 AN ACT enacting the uniform partition of heirs property act; prescribing
77 procedures and requirements for partition of certain real property.
88 Be it enacted by the Legislature of the State of Kansas:
99 Section 1. Sections 1 through 13, and amendments thereto, shall be
1010 known and may be cited as the uniform partition of heirs property act.
1111 Sec. 2. As used in the uniform partition of heirs property act:
1212 (a) "Ascendant" means an individual who precedes another individual
1313 in lineage, in the direct line of ascent from the other individual.
1414 (b) "Collateral" means an individual who is related to another
1515 individual under the law of intestate succession of this state, but who is not
1616 the other individual's ascendant or descendant.
1717 (c) "Descendant" means an individual who follows another individual
1818 in lineage, in the direct line of descent from the other individual.
1919 (d) "Determination of value" means a court order determining the fair
2020 market value of heirs property under section 6 or 10, and amendments
2121 thereto, or adopting the valuation of the property agreed to by all co-
2222 tenants.
2323 (e) "Heirs property" means real property held in tenancy in common
2424 that satisfies all of the following requirements as of the filing of a partition
2525 action:
2626 (1) There is no agreement in a record binding all the co-tenants that
2727 governs the partition of the property;
2828 (2) one or more of the co-tenants acquired title from a relative,
2929 whether living or deceased; and
3030 (3) any of the following applies:
3131 (A) 20% or more of the interests are held by co-tenants who are
3232 relatives;
3333 (B) 20% or more of the interests are held by an individual who
3434 acquired title from a relative, whether living or deceased; or
3535 (C) 20% or more of the co-tenants are relatives.
3636 (f) "Partition by sale" means a court-ordered sale of the entire heirs
3737 property, whether by auction, sealed bids or open-market sale conducted
3838 under section 10, and amendments thereto.
3939 (g) "Partition in kind" means the division of heirs property into
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7575 physically distinct and separately titled parcels.
7676 (h) "Record" means information that is inscribed on a tangible
7777 medium or that is stored in an electronic or other medium and is
7878 retrievable in perceivable form.
7979 (i) "Relative" means an ascendant, descendant or collateral or an
8080 individual otherwise related to another individual by blood, marriage,
8181 adoption or law of this state other than the uniform partition of heirs
8282 property act.
8383 Sec. 3. (a) The uniform partition of heirs property act applies to
8484 partition actions filed on or after July 1, 2024.
8585 (b) In an action to partition real property under K.S.A. 60-1003, and
8686 amendments thereto, the court shall determine whether the property is
8787 heirs property. If the court determines that the property is heirs property,
8888 the property must be partitioned under the uniform partition of heirs
8989 property act, unless all of the co-tenants otherwise agree in a record.
9090 (c) The uniform partition of heirs property act supplements K.S.A.
9191 60-1003, and amendments thereto, and, if an action is governed by the act,
9292 replaces provisions of K.S.A. 60-1003, and amendments thereto, that are
9393 inconsistent with the act.
9494 Sec. 4. (a) The uniform partition of heirs property act does not limit
9595 or affect the method by which service of a complaint in a partition action
9696 may be made.
9797 (b) If the plaintiff in a partition action seeks an order of notice by
9898 publication, and the court determines that the property may be heirs
9999 property, the plaintiff, not later than 10 days after the court's determination,
100100 shall post a conspicuous sign on the property that is the subject of the
101101 action and shall maintain the sign while the action is pending. The sign
102102 must state that the action has commenced and identify the name and
103103 address of the court and the common designation by which the property is
104104 known. The court may require the plaintiff to publish on the sign the name
105105 of the plaintiff and the known defendants.
106106 Sec. 5. If the court appoints commissioners pursuant to K.S.A. 60-
107107 1003, and amendments thereto, each commissioner, in addition to the
108108 requirements and disqualifications applicable to commissioners in K.S.A.
109109 60-1003, and amendments thereto, must be disinterested and impartial and
110110 not a party to or a participant in the action.
111111 Sec. 6. (a) Except as otherwise provided in subsections (b) and (c), if
112112 the court determines that the property that is the subject of a partition
113113 action is heirs property, the court shall determine the fair market value of
114114 the property by ordering an appraisal pursuant to subsection (d).
115115 (b) If all co-tenants have agreed to the value of the property or to
116116 another method of valuation, the court shall adopt that value or the value
117117 produced by the agreed method of valuation.
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161161 (c) If the court determines that the evidentiary value of an appraisal is
162162 outweighed by the cost of the appraisal, the court, after an evidentiary
163163 hearing, shall determine the fair market value of the property and send
164164 notice to the parties of the value.
165165 (d) If the court orders an appraisal, the court shall appoint a
166166 disinterested real estate appraiser licensed in this state to determine the fair
167167 market value of the property assuming sole ownership of the fee simple
168168 estate. On completion of the appraisal, the appraiser shall file a sworn or
169169 verified appraisal with the court.
170170 (e) If an appraisal is conducted pursuant to subsection (d), not later
171171 than 10 days after the appraisal is filed, the court shall send notice to each
172172 party with a known address, stating:
173173 (1) The appraised fair market value of the property;
174174 (2) that the appraisal is available at the clerk's office; and
175175 (3) that a party may file with the court an objection to the appraisal,
176176 not later than 30 days after the notice is sent, stating the grounds for the
177177 objection.
178178 (f) If an appraisal is filed with the court pursuant to subsection (d),
179179 the court shall conduct a hearing to determine the fair market value of the
180180 property not sooner than 30 days after a copy of the notice of the appraisal
181181 is sent to each party under subsection (e), whether or not an objection to
182182 the appraisal is filed under subsection (e)(3). In addition to the court-
183183 ordered appraisal, the court may consider any other evidence of value
184184 offered by a party.
185185 (g) After a hearing under subsection (f), but before considering the
186186 merits of the partition action, the court shall determine the fair market
187187 value of the property and send notice to the parties of the value.
188188 Sec. 7. (a) If any co-tenant requested partition by sale, after the
189189 determination of value under section 6, and amendments thereto, the court
190190 shall send notice to the parties that any co-tenant, except a co-tenant that
191191 requested partition by sale, may buy all the interests of the co-tenants that
192192 requested partition by sale.
193193 (b) Not later than 45 days after the notice is sent under subsection (a),
194194 any co-tenant, except a co-tenant that requested partition by sale, may give
195195 notice to the court that it elects to buy all the interests of the co-tenants that
196196 requested partition by sale.
197197 (c) The purchase price for each of the interests of a co-tenant that
198198 requested partition by sale is the value of the entire parcel determined
199199 under section 6, and amendments thereto, multiplied by the co-tenant's
200200 fractional ownership of the entire parcel.
201201 (d) After expiration of the period in subsection (b), the following
202202 rules apply:
203203 (1) If only one co-tenant elects to buy all the interests of the co-
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247247 tenants that requested partition by sale, the court shall notify all the parties
248248 of that fact.
249249 (2) If more than one co-tenant elects to buy all the interests of the co-
250250 tenants that requested partition by sale, the court shall allocate the right to
251251 buy those interests among the electing co-tenants based on each electing
252252 co-tenant's existing fractional ownership of the entire parcel divided by the
253253 total existing fractional ownership of all co-tenants electing to buy and
254254 send notice to all the parties of that fact and of the price to be paid by each
255255 electing co-tenant.
256256 (3) If no co-tenant elects to buy all the interests of the co-tenants that
257257 requested partition by sale, the court shall send notice to all the parties of
258258 that fact and resolve the partition action under section 8(a) and (b), and
259259 amendments thereto.
260260 (e) If the court sends notice to the parties under subsection (d)(1) or
261261 (2), the court shall set a date, not sooner than 60 days after the date the
262262 notice was sent, by which electing co-tenants must pay their apportioned
263263 price into the court. After this date, the following rules apply:
264264 (1) If all electing co-tenants timely pay their apportioned price into
265265 court, the court shall issue an order reallocating all the interests of the co-
266266 tenants and disburse the amounts held by the court to the persons entitled
267267 to them.
268268 (2) If no electing co-tenant timely pays its apportioned price, the
269269 court shall resolve the partition action under section 8(a) and (b), and
270270 amendments thereto, as if the interests of the co-tenants that requested
271271 partition by sale were not purchased.
272272 (3) If one or more, but not all of the electing co-tenants, fail to pay
273273 their apportioned price on time, the court, on motion, shall give notice to
274274 the electing co-tenants that paid their apportioned price of the interest
275275 remaining and the price for all that interest.
276276 (f) Not later than 20 days after the court gives notice pursuant to
277277 subsection (e)(3), any co-tenant that paid may elect to purchase all of the
278278 remaining interests by paying the entire price into the court. After the 20-
279279 day period, the following rules apply:
280280 (1) If only one co-tenant pays the entire price for the remaining
281281 interests, the court shall issue an order reallocating the remaining interests
282282 to that co-tenant. The court shall issue promptly an order reallocating the
283283 interests of all of the co-tenants and disburse the amounts held by it to the
284284 persons entitled to them.
285285 (2) If no co-tenant pays the entire price for the remaining interests,
286286 the court shall resolve the partition action under section 8(a) and (b), and
287287 amendments thereto, as if the interests of the co-tenants that requested
288288 partition by sale were not purchased.
289289 (3) If more than one co-tenant pays the entire price for the remaining
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333333 interests, the court shall reapportion the remaining interests among those
334334 paying co-tenants, based on each paying co-tenant's original fractional
335335 ownership of the entire parcel divided by the total original fractional
336336 ownership of all co-tenants that paid the entire price for the remaining
337337 interests. The court shall issue promptly an order reallocating all of the co-
338338 tenants' interests, disburse the amounts held by it to the persons entitled to
339339 them and promptly refund any excess payment held by the court.
340340 (g) Not later than 45 days after the court sends notice to the parties
341341 pursuant to subsection (a), any co-tenant entitled to buy an interest under
342342 this section may request the court to authorize the sale as part of the
343343 pending action of the interests of co-tenants named as defendants and
344344 served with the complaint but that did not appear in the action.
345345 (h) If the court receives a timely request under subsection (g), the
346346 court, after hearing, may deny the request or authorize the requested
347347 additional sale on such terms as the court determines are fair and
348348 reasonable, subject to the following limitations:
349349 (1) A sale authorized under this subsection may occur only after the
350350 purchase prices for all interests subject to sale under subsections (a)
351351 through (f) have been paid into court and those interests have been
352352 reallocated among the co-tenants as provided in those subsections; and
353353 (2) the purchase price for the interest of a nonappearing co-tenant is
354354 based on the court's determination of value under section 6, and
355355 amendments thereto.
356356 Sec. 8. (a) If all the interests of all co-tenants that requested partition
357357 by sale are not purchased by other co-tenants pursuant to section 7, and
358358 amendments thereto, or if after conclusion of the buyout under section 7,
359359 and amendments thereto, a co-tenant remains that has requested partition
360360 in kind, the court shall order partition in kind, unless the court, after
361361 consideration of the factors listed in section 9, and amendments thereto,
362362 finds that partition in kind will result in manifest prejudice to the co-
363363 tenants as a group. In considering whether to order partition in kind, the
364364 court shall approve a request by two or more parties to have their
365365 individual interests aggregated.
366366 (b) If the court does not order partition in kind under subsection (a),
367367 the court shall order partition by sale pursuant to section 10, and
368368 amendments thereto, or, if no co-tenant requested partition by sale, the
369369 court shall dismiss the action.
370370 (c) If the court orders partition in kind pursuant to subsection (a), the
371371 court may require that one or more co-tenants pay one or more other co-
372372 tenants amounts so that the payments, taken together with the value of the
373373 in-kind distributions to the co-tenants, will make the partition in kind just
374374 and proportionate in value to the fractional interests held.
375375 (d) If the court orders partition in kind, the court shall allocate to the
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419419 co-tenants that are unknown, unlocatable, or the subject of a default
420420 judgment, if their interests were not bought out pursuant to section 7, and
421421 amendments thereto, a part of the property representing the combined
422422 interests of these co-tenants as determined by the court and this part of the
423423 property shall remain undivided.
424424 Sec. 9. (a) In determining under section 8(a), and amendments
425425 thereto, whether partition in kind would result in manifest prejudice to the
426426 co-tenants as a group, the court shall consider the following:
427427 (1) Whether the heirs property practicably can be divided among the
428428 co-tenants;
429429 (2) whether partition in kind would apportion the property in such a
430430 way that the aggregate fair market value of the parcels resulting from the
431431 division would be materially less than the value of the property if it were
432432 sold as a whole, taking into account the condition under which a court-
433433 ordered sale likely would occur;
434434 (3) evidence of the collective duration of ownership or possession of
435435 the property by a co-tenant and one or more predecessors in title or
436436 predecessors in possession to the co-tenant who are or were relatives of the
437437 co-tenant or each other;
438438 (4) a co-tenant's sentimental attachment to the property, including any
439439 attachment arising because the property has ancestral or other unique or
440440 special value to the co-tenant;
441441 (5) the lawful use being made of the property by a co-tenant and the
442442 degree to which the co-tenant would be harmed if the co-tenant could not
443443 continue the same use of the property;
444444 (6) the degree to which the co-tenants have contributed their pro rata
445445 share of the property taxes, insurance and other expenses associated with
446446 maintaining ownership of the property or have contributed to the physical
447447 improvement, maintenance or upkeep of the property; and
448448 (7) any other relevant factors.
449449 (b) The court may not consider any one factor in subsection (a) to be
450450 dispositive without weighing the totality of all relevant factors and
451451 circumstances.
452452 Sec. 10. (a) If the court orders a sale of heirs property, the sale must
453453 be an open-market sale, unless the court finds that a sale by sealed bids or
454454 an auction would be more economically advantageous and in the best
455455 interest of the co-tenants as a group.
456456 (b) If the court orders an open-market sale and the parties, not later
457457 than 10 days after the entry of the order, agree on a real estate broker
458458 licensed in this state to offer the property for sale, the court shall appoint
459459 the broker and establish a reasonable commission. If the parties do not
460460 agree on a broker, the court shall appoint a disinterested real estate broker
461461 licensed in this state to offer the property for sale and shall establish a
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505505 reasonable commission. The broker shall offer the property for sale in a
506506 commercially reasonable manner at a price no lower than the
507507 determination of value and on the terms and conditions established by the
508508 court.
509509 (c) If the broker appointed under subsection (b) obtains within a
510510 reasonable time an offer to purchase the property for at least the
511511 determination of value:
512512 (1) The broker shall comply with the reporting requirements in
513513 section 11, and amendments thereto; and
514514 (2) the sale may be completed in accordance with state law other than
515515 the uniform partition of heirs property act.
516516 (d) If the broker appointed under subsection (b) does not obtain
517517 within a reasonable time an offer to purchase the property for at least the
518518 determination of value, the court, after hearing, may:
519519 (1) Approve the highest outstanding offer, if any;
520520 (2) redetermine the value of the property and order that the property
521521 continue to be offered for an additional time; or
522522 (3) order that the property be sold by sealed bids or an auction.
523523 (e) If the court orders a sale by sealed bids or an auction, the court
524524 shall set terms and conditions of the sale. If the court orders an auction, the
525525 auction must be conducted under K.S.A. 60-1003, and amendments
526526 thereto.
527527 (f) If a purchaser is entitled to a share of the proceeds of the sale, the
528528 purchaser is entitled to a credit against the price in an amount equal to the
529529 purchaser's share of the proceeds.
530530 Sec. 11. (a) Unless required to do so within a shorter time by K.S.A.
531531 60-1003, and amendments thereto, a broker appointed under section 10(b),
532532 and amendments thereto, to offer heirs property for open-market sale shall
533533 file a report with the court not later than seven days after receiving an offer
534534 to purchase the property for at least the value determined under section 6
535535 or 10, and amendments thereto.
536536 (b) The report required by subsection (a) must contain the following
537537 information:
538538 (1) A description of the property to be sold to each buyer;
539539 (2) the name of each buyer;
540540 (3) the proposed purchase price;
541541 (4) the terms and conditions of the proposed sale, including the terms
542542 of any owner financing;
543543 (5) the amounts to be paid to lienholders;
544544 (6) a statement of contractual or other arrangements or conditions of
545545 the broker's commission; and
546546 (7) other material facts relevant to the sale.
547547 Sec. 12. In all proceedings for the partition of heirs property, the court
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591591 shall apportion the costs of the proceedings, including a reasonable fee for
592592 the plaintiff's attorney, among the parties in interest in the action as the
593593 court deems just and equitable. In determining the just and equitable
594594 apportionment of the costs and attorney fees, the court may consider,
595595 among other things, the good faith attempt of the parties to agree prior to
596596 the initiation of the complaint. If any defendant interposes a good and
597597 substantial defense to the complaint, the party or parties making such
598598 substantial defense shall recover costs against the plaintiff according to
599599 justice and equity.
600600 Sec. 13. In applying and construing this uniform act, consideration
601601 must be given to the need to promote uniformity of the law with respect to
602602 its subject matter among states that enact it.
603603 Sec. 14. The uniform partition of heirs property act modifies, limits
604604 and supersedes the electronic signatures in global and national commerce
605605 act, 15 U.S.C. § 7001 et seq., but does not modify, limit or supersede
606606 section 101(c) of that act, 15 U.S.C. § 7001(c), or authorize electronic
607607 delivery of any of the notices described in section 103(b) of that act, 15
608608 U.S.C. § 7003(b).
609609 Sec. 15. This act shall take effect and be in force from and after its
610610 publication in the statute book.
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