Attorney Fees in Partition Cases, Limitations

A partition is a court-ordered sale or division of real property. In a partition suit, the party initiating the suit is typically entitled to his or her attorney fees to be paid from the common fund/sale proceeds. Specifically, Section 528.530, RSMo and Rule 96.30 both provide that the court “shall allow a reasonable fee to the attorney” instituting a partition action. The rationale for this rule is that the attorney who brought the partition action is, in a sense, representing the co-owners. Therefore, courts permit the attorney who brought the partition action to be compensated “out of the common fund realized from the sale of the property.” Higgins v. Olson, 991 S.W.2d 216, 219 (Mo. Ct. App. 1999).

This amount of compensation has its limits. The compensation is “generally limited to such work as would be required in an uncontested suit.” Tadych v. Horner, 336 S.W.3d 174, 180 (Mo. Ct. App. 2011). Accordingly, if the suit becomes contested, the full amount of attorney fees incurred in connection with the contested proceeding will likely not be recoverable.