Partition of Jointly Owned Property
UPDATED: October 25, 2013
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Sometimes joint owners of property cannot agree on what to do with their piece of property. Fortunately, almost every state has a legal procedure to divide real property when the joint owners decide to go their separate ways. One owner 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 their real property. Real property includes property like a home, farm, or undeveloped land. Depending on the laws of the specific state, partition may also be a remedy for certain personal property.
The Right to Partition
Gather all your records relating to the property in dispute, including maintenance records, tax records, title, deed restrictions, and probate paperwork. Sharing these records in advance with an attorney will enable you to know your options. The right to partition is generally an "absolute right" favored by the court system. Partitions are usually granted unless there is a legal or written exception, like a provision in a Will. Courts, however, do not usually enforce the provisions that restrict the right to partition for an unreasonable amount of time. They also are reluctant to enforce agreements that would never allow an owner to partition. Your state’s property and probate codes will control which exceptions can be enforced in your particular situation.
Types of Partition Actions
Once established that you can file for partition, the next step is to decide the type of partition you would like to file. Two kinds of partition are “partition in kind” and “partition by sale”. “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 his own separate portion of the property. “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 forcing an unwanted sale, the court 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 Limitations
A court-ordered partition does have its limitations. Courts resolve partition cases on various factors like rights, titles, and interest of the parties to the lawsuit. How much of the property you receive depends on the type of and percentage of ownership 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.
Countersuit for Expenses
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 countersuit 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.