Despite their best efforts, sometimes the joint owners of property just can’t decide what to do with a piece of property. Fortunately, almost every state has legal procedures to divide real property when joint owners decide to go different in directions. You can file what is called an action for “partition”. In a divorce action, a parent can sue for custody of a child. Similarly, in a partition action, a joint owner can sue for “custody”, or full ownership, of real property. Real property includes property like a home, farm, or undeveloped land. Depending on the laws in your state, partition may also be a remedy for certain personal property.
Before you file a partition action, you need to gather all of your records relating to the property in dispute: maintenance records, tax records, title, deed restrictions, probate paperwork, etc. Sharing these records in advance with a qualified attorney will enable them to tell you exactly what your options are and when you can use them. The right to partition is generally an "absolute right" that is favored by the court. Partitions are usually granted unless there is a legal or written exception, like a provision in a Will. The courts, however, generally do not enforce provisions that restrict the right to partition for an unreasonable amount of time. They also decline to enforce agreements that never allow an owner to partition. Your state’s property and probate codes will control which exceptions can be enforced in your situation.
Once you establish that you can file for partition, the next step is to decide which type of partition you would like to file. There are two kinds of partition: “Partition in kind” and “partition by sale”.
A “partition in kind” is an actual division of the property, or a splitting of the proverbial baby. It divides the individual interest of the joint owners. Each owner ends up controlling their own separate portion of the property.
A “partition by sale” is accomplished by selling the entire property and dividing the proceeds equitably among the owners. This type of partition is used when “partition in kind” is impractical, such as in the division of a single-family home. However, before courts force an unwanted sale, they can order or permit one of the co-owners to purchase the interest of the remaining co-owner(s) for fair market value.
Court-ordered partition does have its limitations. Courts resolve partition cases on various factors like rights, titles and interest of the parties to the suit. How much of the property you receive will depend on the type of and percentage ofownership interest you had in the property. For example, if you and one other person jointly owned fifty acres of land, then you should receive twenty-five acres as a result of the partition. If your ownership was based on a percentage, then your award could be based on that percentage. Your state’s laws will set the final rules for this division.
If a joint owner sues you for partition and you have incurred expenses directly related to the property, you may be able to file a counter suit to recover contributions made solely by you. For example, you can be reimbursed for any payment of taxes, interest, or other charges over and above your share. However, absent an agreement to the contrary, you are not ordinarily entitled to compensation for services rendered in the care and management of the property. This includes expenses associated with leasing, collecting rentals, supervising repairs, or making minor repairs yourself.
Both types of partitions come with advantages and disadvantages. To determine which type of partition of joint property is best for your situation, contact a property attorney in your state.