Do you own some land? Would you like to sell it, set up a business or build a house on it? What if more than one person owns it? Is there anything you can do if the other owner doesn't want to sell the property or build anything on it? A partition action can be brought to divide the property in individual shares among the owners.
A partition, or division, of property is voluntarily if all owners agree to the division of property. However, if they don't, a judge can order a partition of the property. This doesn't always work out in the best interest of each person.
Application of Partition
Most of the time, a partition action involves the division of real property like a home or farm land. Nevertheless, there are times when a partition action has involved personal property like stocks.
Types of Partition
There are two kinds of partition:
- 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 portion of the property.
- 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.
The right to partition is an "absolute right" that's 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 to in a contract. It's usually a remedy that's favored by the court and is readily granted.
Avoiding a Partition Action
In certain situations, some measures can be taken to avoid partition actions, at least for a period of "reasonable duration." For example, a co-tenant who agrees not to partition may be barred from claiming the right, particularly if the agreement is in writing. Moreover, a co-tenant that obtains title through an instrument that includes a non-partition agreement will be bound by those terms. The courts, however, will generally not enforce an agreement that restricts the right to partition for an unreasonable amount of time nor will the courts enforce an agreement to never partition.
Voluntary vs. Judicial
Co-tenants 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, a lawsuit may be filed so that the courts will create a partition.
Unlike voluntary partition, court-ordered partition (or compulsory partition) is subject to numerous legal principles such as statutory limitations, laches (undue delay) and public policy. Similarly, the case is decided on various factors like rights, titles and interest of the parties to the suit.
Questions for Your Attorney
- If I own an interest in property as a tenant in common, do I have to file a partition lawsuit in order to sell my interest?
- If my spouse and I own property as tenants by the entireties, can my spouse sell the property without my consent?
- After there's a partition in kind of property, can I sell my portion of the property without consent of the other owners?
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