Real Estate

Partition Action

By Brian Farkas, Attorney
Can't agree with your fellow landowners about how to use the land or whether to sell it? A partition action may be in order.

Imagine that you own a property or a parcel of land with another person – a sibling, a friend, or a spouse. But then your interests diverge; you and that person have different ideas about what to do with the property; in particular, how to use, improve, or dispose of it.

Say, for example, one of you wants to build or expand a house, the other wants to start a farm. Or that one of you wants to sell the property, the other wants to maintain it for generations. Perhaps one of you wants to rent it out, the other wants to leave it unoccupied until some future date when it will be sold. Your efforts to negotiate or compromise are getting you nowhere; you're stalemated.

Is there anything you can do in these intractable situations? The law offers something called a partition action, which can be brought to divide the property into individual shares among the owners, allowing you to move forward with your share independently.

A partition, or division, of property can be arranged on a voluntary basis if all owners agree to it. However, if they don't agree, a judge can order a partition of the property based on one owner's request. If done gracefully and with agreement, it can result in a more efficient splitting of the property where all of the former owners are happier owning their own portion.

Types of Partition Actions the Law Allows For

There are two mains types of legal partitions of land ownership (although the precise vocabulary might differ from one state to another).

First, a partition in kind, also known as an "actual partition," severs the individual interest of each joint owner. Each owner ends up controlling an individual, divided portion of the property. This is the most common type of partition, and tends to be easiest when the parties generally get along, but simply disagree about the best use of the land, and also where the land is easily divided into discrete portions. This allows for a “conscious uncoupling” where each person takes a piece of the land as his or her own, and records that division with the county clerk.

Second, a partition by sale, also known 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 perform or when the parties cannot agree. If, for example, the property is a small lot with one cottage on it, or something equally hard to slice down the middle, partition by sale might be the best bet. The co-owners will sell the land, dividing up the proceeds, and each have the opportunity to go out and buying their own, separate properties.

Voluntary Partition vs. Judicial Partition

Co-owners may voluntarily agree to partition their ownership rights and divide the property. Such agreements are generally enforced unless they adversely affect the rights of another person. If all owners don't agree to the partition, one owner may file a lawsuit asking the courts to compel a partition.

Unlike voluntary partition, court-ordered partition (or compulsory partition) can be defended against based on various legal principles, such as statutes of limitations, laches (undue delay), and public policy. Similarly, the court will decide the case based on various factors like rights, titles, and the interests of the parties to the suit.

Odds of a Court Granting Partition as a Remedy

The right to partition is an "absolute right," which can be restricted only by law, written waiver, or a provision in a will. The right can be used at any time, even if it's not referenced in a contract. Partition is a remedy that's usually favored by courts, for the sake of maintaining peace between the parties. In other words, assuming that you meet the various legal requirements for partition in your state, your partition suit should be readily granted.

Consider Mediation Before Filing a Partition Action

If you are having disagreements with your co-owner about the proper way to use, divide, or sell your parcel, it is probably better to work these out between you instead of wasting time and money in court. A mediator—a third-party neutral who helps the two of you negotiate—might be able to reach a more sensible compromise than a judge could, and at a far lower cost than protracted litigation. Mediation is a particularly valuable tool if you want to remain on good terms with your co-owner, for example if he or she is a family member.

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