The Uniform Partition of Heirs Property Act (“UPHPA”) has been enacted in 21 States. It is designed to preserve family wealth passed to the next generation in the form of real proeprty. In Georgia, the Act is codified at O.C.G.A. § 44-6-180 through § 44-6-189.1.
Initially, when a partition action is filed, the Act requires the Court to determine whether the property is “heirs proeprty.” O.C.G.A. § 44-6-181(b). In Faison v. Faison, 344 Ga.App. 600 (2018), the Court held this deterination is mandatory, reversing the trial court for failing to make this determination.
“Heirs property” means real property held in tenancy in common which satisfies all of the following requirements on the date of the filing of a partition action:
(A) There is no agreement in a record binding all the cotenants which governs the partition of the property;
(B) One or more of the cotenants acquired title from a relative, whether living or deceased; and
(C) Any of the following applies:
(i) Twenty percent or more of the interests are held by cotenants who are relatives;
(ii) Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
(iii) Twenty percent or more of the cotenants are relatives.
See O.C.G.A. § 44-6-180(5).
If the property is heirs property, the court shall determine the fair market value of the property by ordering an appraisal pursuant to subsection (d) of this Code section. See O.C.G.A. § 44-6-184(a). In Morton v. Pitts, 357 Ga. App. 513 (2020), the Court held that ordering an appraisal is mandatory and reversed a trial court for faling to order one. If all cotenants agree to the value of the property, the court shall adopt that value. O.C.G.A. § 44-6-184(b). If the property is sold, then any cotentant except one seekking partition by sale by buyout the other cotenants. The price for each cotenant interest shall be the value of the entire parcel multiplied by the cotenant’s fractional ownerhips of the entire parcel. See O.C.G.A. § 44-6-185. If all of the interests are not sold, the Court may order a partition in kind. O.C.G.A. § 44-6-186(a)(1). In determining whether partition in kind would result in prejudice to the cotenants as a group, the court shall consider:
(i) Whether the heirs property practicably can be divided among the cotenants;
(ii) Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court ordered sale likely would occur;
(iii) Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other;
(iv) A cotenant’s sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant;
(v) The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property;
(vi) The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and
(vii) Any other relevant factor.
See O.C.G.A. § 44-6-186(a)(2). In Matabane v. Whatley (Ga. Ct. App. A22A0152 May 27, 2022), the Court held that where property will not be sold and in in kind distribution is proposed, “the UPHPA required the trial court to hear the merits of the partition-in-kind action and consider the relevant statutory factors before dismissing the action.” If an open-market sale of the heirs proeprty is ordered, the sale shall be an open-market sale unless the court finds that a sale by sealed bids or a public sale would be more economically advantageous and in the best interest of the cotenants as a group. O.C.G.A. § 44-6-187(a).
