Rule 3.401.Partition

MCR 3.401 is the hinge of a partition case. It names what the court decides at the hearing and then sends the case down one of two tracks: physical division of the land, or a sale with the money divided instead. Everything in MCR 3.402 and MCR 3.403 waits on the finding this rule calls for.

What the court determines

Subrule (A) lists three items for the hearing:

• whether the premises can be partitioned without great prejudice to the parties;
• the value of the use of the premises and of improvements made to the premises; and
• other matters the court considers pertinent.

The third item keeps the list open. The rule sets a floor for the hearing, not a ceiling, and leaves the court room to reach whatever else the dispute puts in play. The valuation item is stated as a finding the court makes; the rule does not attach a formula to it.

Divide or sell

Subrule (B) converts the first finding into a path. If the court determines the premises can be partitioned, MCR 3.402 governs the proceedings that follow, beginning with the court's determination of the parties' rights and interests and ending with a judgment confirming a partition commissioner's report. If the court determines the premises cannot be partitioned without undue prejudice to the owners, it may order the premises sold in lieu of partition under MCR 3.403.

Two details in that subrule are worth reading closely. The sale branch is permissive in its wording — the court may order the sale once the finding is made. And the two branches are phrased with different words: subrule (A)(1) asks about great prejudice to the parties, while subrule (B) speaks of undue prejudice to the owners.

Lien creditors

Subrule (C) makes joinder of lien creditors optional rather than mandatory. A creditor holding a lien on all or part of the premises — by judgment, mortgage, or otherwise — need not be made a party to the partition proceedings. The plaintiff may join every creditor having a specific lien on the undivided interest or estate of a party. Where creditors are joined, the complaint must state the nature of every lien or encumbrance.

The subrule draws a line between two kinds of creditor. It excuses joinder of a creditor with a lien on all or part of the premises, and it gives the plaintiff a choice about creditors with a specific lien on the undivided interest or estate of a party. Where the plaintiff makes that choice, the pleading burden follows: the complaint must state the nature of every lien or encumbrance.