Partition Action

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Partition involves the division of jointly owned property so that each owner subsequently holds an individual interest in a divided portion of the property. Partition may be voluntary, if all owners agree to the division of property; otherwise, partition must be ordered by a judge. Statutory provisions provide owners of real property with the right to force a partition sale.

Application of Partition

The term "partition" is most often used to refer to the division of co-owned real property, although it may refer to personal property, as well. The remedy of partition is based on the fact of co-ownership - unity of title and possession - and, thus, it is not applicable where a party claims an exclusive ownership interest.

Types of Partition

Partition in Kind

A partition in kind, which is also referred to as "actual partition," is accomplished by severing the individual interest of each joint owner, resulting in each owner having control over an individual portion of the property.

Partition by Sale

A partition by sale, which is also referred to as partition by "licitation" or "succession", is accomplished by selling the entire property and dividing the proceeds among the owners. This type of partition is used when partition in kind is difficult to accomplish.

Remedy

The right to partition is an "absolute right" that is restricted only by statute, written waiver, or testamentary provision (such as a will). No contract is required to enforce the right, and the right is available regardless of motive. Moreover, the right to partition is a favored judicial remedy and is readily granted regardless of a party's objections.

Avoiding a Partition Action

Although partition actions are favored by courts, measures can be taken in certain situations to avoid partition actions, at least for a period of "reasonable duration." For example, a co-tenant who agrees not to partition may be estopped from claiming the right, particularly if the agreement is in writing. Moreover, a co-tenant that derives title through an instrument that includes a non-petition agreement will be bound. However, an agreement never to partition or one that restricts the right to partition for an unreasonable length of time will not be enforced by courts.

In addition, the right to partition can be limited for a reasonable length of time through testamentary provisions in a will or similar instrument. However, such a restriction does not apply to those with a statutory right of renunciation and it does not apply when homestead or dowry exemptions are at issue.

Voluntary vs. Judicial

Co-tenants may voluntary agree to partition their ownership rights and divide the property. Such agreements are generally enforced unless they adversely affect the rights of third parties. If all owners do not agree to the partition, a lawsuit may be filed for judicial petition.

Unlike voluntary partition, judicial partition (or compulsory partition) is subject to numerous legal principles such as statutory limitations, laches (delay), and principles of law, equity, and public policy. Similarly, the Court is bound to decide the case on various factors like rights, titles, and interest of the parties to the suit.

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