Imagine that you and someone else own a property or a parcel of land jointly or as tenants-in-common. Perhaps that person is a sibling, friend, or spouse. Your interests eventually diverge. You and your co-owner come to 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, but the other wants to start a farm. Or, one of you wants to sell, while the other wants to maintain the place for generations. Perhaps one of you wants to rent it out, but 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, and the expenses of keeping the property are piling up.
Is there anything you can do in these tough situations? If all else fails, the law offers something called a partition action. This means you would take the matter to a judge, who could potentially respond to your petition by either:
- splitting the property into portions, divided fairly among the owners, or
- ordering a sale, with the proceeds to be split among the owners.
We'll discuss both possibilities here.
Option of Actual Partition (Physical Division of Property and Title)
Also known as an "partition in kind," this severs the individual interest of each joint owner. Each owner ends up controlling an individual, equitably divided portion of the property.
Actual partition tends to be easiest when the parties generally get along, and where the land is easily divided into discrete portions; for example, it is completely undeveloped. This allows for a “conscious uncoupling” where each person takes a piece of the land as their own and records documentation of that division with the county clerk's office.
Option of Partition by Sale
Also known as partition by "licitation" or "succession," a partition by sale means forcing a sale of the entire property. The proceeds are then divided among the owners. This type of partition is used when actual partition is difficult to achieve without seriously damaging one party's interests.
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 buy their own, separate properties.
Option of Voluntary Partition
If some sort of agreement can be arrived at, it won't be necessary to run to court. 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, however, one owner may file a lawsuit asking the courts to compel a partition.
What Will Convince a Judge to Grant Partition?
If you are planning to go to court over this dispute, there's going to be at least one co-owner arguing that the court should NOT order the partition. This other party can mount a defense based on various legal principles, such as statutes of limitations (meaning you've waited too long to file the action, per your state's laws), laches (undue delay), and public policy.
One thing that the co-owner cannot argue, however, is that the right to partition was not included in the contract between the co-owners. The right to partition need not be written into such a contract. In fact, this right can legally be restricted only by law, written waiver, or a provision in a will.
Partition is a remedy that's often 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 found in your state's laws, your partition suit should be readily granted.
Consider Mediation Before Filing a Partition Action
If you are deep in disagreements with a co-owner about the proper way to use, divide, or sell your parcel or property, 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 help you reach a more sensible compromise than a judge could, and at a far lower cost than protracted litigation.
Perhaps the remedies you have discussed before one-on-one, such as one party buying the other out, will start to look more reasonable and achievable with a mediator's help. Mediation is a particularly valuable tool if you want to remain on good terms with your co-owner, for example if they're a family member.