Partition of Real Estate

Attorneys Real Estate Group

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“It is often difficult to divide an inherited asset because many individuals will have an interest. As a result, a partition in California entails asking the court for help in determining how to divide jointly owned property fairly and equitably. Today, we will learn about the partition of real estate.”

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Partition of Real Estate

Real Estate Partitioning

Partition actions often occur because more than one person is interested in the property. This may be a relative or a financier. A dispute can arise when these interests diverge, for example, when there is a difference of opinion about what should happen with the property.

These instances can become complicated in terms of how to use the area and what to do next if one wants to improve it and the other wants to drop it. A real estate lawyer is frequently the best option in these situations.

One individual may want to build or add to their home or buildings on their property, but another would like to start a factory or farm instead. The amount of land or property available cannot accommodate both of these, so help is necessary from a third party.

Both parties usually need this when they cannot reach a deal through negotiation or compromise and can’t figure out what to do. A partition action divides the property between the individuals so they may move forward with their plans.


Partition Procedure

When a party wishes to partition, it must file a lawsuit. State codes usually favor physical division (partition in kind) over sale (partition by purchase as a unit), mainly if the deal would result in the tenant leaving their primary residence.

We will divide the property(s) proportionally if the in-kind partition is feasible. Cash compensation will be provided to maintain proportionality whenever minor differences are unavoidable in such a division.

A court will order a sale if it cannot divide and divide the property(s) so each tenant has a part without ruining the whole. The partition process is typically carried out by a special master (referee).

An in-kind partition requires the California partition referee to prepare deeds to the adjusted property(s) according to court and state law instructions. San Francisco partition referee is solely responsible to the court, and its limitations are only by the court’s instructions and applicable state laws.

In cases where we need easements to gain access, the referee will hire experts (engineers, surveyors, etc.) to describe the easements as necessary. It is often required to record the conveyance and easement deeds simultaneously. “Referee’s deeds” (whereby the Sacramento partition referee signs on behalf of the owner) may be used in some cases.


How to File a Partition Action?

If over two property owners do not agree on selling a house, the owner can file a suit to force a sale. Under U.S. law, remember that, under chapter 64.022 of the Florida Statutes (link), when filing a partition lawsuit. File the suit in the county where the property is situated. In a partition lawsuit, all parties involved must identify themselves. This includes lienholders, owners, lenders, and estate owners. They all want to claim an interest in the property.

At least one co-owner must file a partition suit to start an action. If they do, they and the other co-owners and lienholders are defendants. Usually, a judge overseeing this partition process would appoint a referee. Then, under F.S. 64.051, The court will examine and decide whether each co-owner will determine if the property is a good candidate for sale.


When is a Partition Action Necessary?

Most commonly, partition proceedings happen when family members co-own real estate. They also happen when unmarried couples co-own properties. Or when co-owners of businesses jointly have real property.

In each situation, the owners agree on how to handle or decide whether to sell their property, so the partition process is not needed. Anyone can file an action for partition if there’s a disagreement about what to do or how to market the house. This will stop a sale or buy-out of the home. In general, partitions require probate. Inheritors receive a deceased person’s property when the deceased person passes it on. The inheritors have differing views about how to deal with it.


Types of Partitions for Real Estate Disputes

A partition action is often the best way for the courts to resolve these matters and maintain peace between the parties that have brought the dispute. Actual partitions cut the specific interest when jointly owned. The property is then divided into smaller portions for each individual, less than the total before being owned. A smaller portion may not be satisfactory to both parties, but they may be willing to work out a solution.


Types of Partitions for Real Estate Disputes


If the property exchanges hands in its entirety, it is considered a limitation partition or a partition by sale, which results in the parties receiving the proceeds for sale. Although it may seem drastic, it occurs when it becomes challenging to complete the actual partition or when there is no agreement between the involved parties.

It occurs more frequently when dividing a building or similar item equally is impossible. Therefore, selling the lot is the best solution for everyone involved. Afterward, each collects the proceeds and purchases land or property according to their needs.


The Partition Action is Often Intentional or Voluntary.

The partition action is often intentional or voluntary for all parties involved. This means all the co-owners agree to the partition so the estate may pass between them. In the case of a disagreement, one owner may file a suit in court to force a separation.

Negotiating and compromising is better than being forced or compelled to submit to judgment by the courts without an agreement between all land owners.

It is often non-negotiable for the parties to agree on a court-ordered petition. However, considering various factors, including the affected individual’s rights, titles, and interests, is essential. You can fight these actions, but a real estate partition lawyer must handle statutes of limitations, delays, and public policy concerns.


Partition Actions May Be The Better Option If The Legal Arena Must Be Involved.

A partition action may be the preferred option if there is disagreement with co-owners about how to proceed with a plan of action, how to use the land, and how to divide or sell the parcel.

However, partition actions may be the better option if the legal arena must be involved. When both parties are open to a compromise solution, a lawyer can provide advice and assist in mediating a decision.

However, it is best to hire a lawyer if mediation is impossible for litigation or partition actions. A legal representative can ensure all rights and factors are considered in the case, meaning that the client’s interests should come first when making a claim.


Good Strategies for Winning a Partition

The owners usually decide to sell the property, which makes it easier for each to obtain its fair share. Estates may also undergo the partition process. Inherited assets can be a challenge. Many people may own them, each with an interest in the estate. So, partitioning property in California requires a judge to find the best way to split a couple’s property.

The most important thing to win an action to partition is to be as organized as possible. Keep all documentation relevant. Being organized and having all your ducks in one row is more likely to assist in gaining a partition.

To win a partition action, it is important to get organized. Document all relevant information.


Stay Organized:

Make sure all property or business ownership documents are in order. Establish a filing system and label each section according to its function.


Take regular minutes of all company meetings:

Business owners must attend all meetings and keep records of all discussions and agreements. This makes it easier to prove any discrepancy that may arise.


Practice Clear Communication:

Remembering a common mission statement when communicating with co-owners lets everyone know their role.


Cover Your Bases:

Ensure the business and property owner meet all agreements and responsibilities formed with co-owners.


Please speak to an Attorney:

Identify a business, real estate, or estate attorney with experience. So they can help you determine the best strategy to achieve your goals.


Reasons for Forced Sales.

There are many reasons for forced sales, including disagreements between owners about certain aspects of the ownership.

Joint tenancy, tenants in common, and tenants by the entirety are all forms of ownership where more than one person owns the property. The parties must decide which tenancy to enter at the time of purchase.

Owners are entitled to occupy the entire property with each type of tenancy. In other words, owners cannot designate specific rooms, but all parties can fully enjoy each part of the house.


Can someone stop a partition?

Generally, you can only stop a partition proceeding once you file an action. Those who want to dissolve co-owned property can sell their interest if they wish to. If you are an owner who prefers not to split the property, there are a few defenses. They can delay or stop a forced sale.

  1. The other party should be able to buy out interest if you can.
  2. We are examining the contract to determine if it is a waiver concerning the rights to divide.
  3. Check to see if the plaintiff has the power to split the property.
  4. Make sure to check deeds for each party that has a title/ownership interest.
  5. Ensure there isn’t a breach of contract committed between the parties concerned.

Defending yourself is the best method for winning a partition case. Engaging a professional partition real estate attorney saves time, money, and anxiety.


Frequently Asked Questions about Partition Matters


What type of relief can the court grant in a partition action?

Relief usually occurs by ordering real property to sell and the owners to distribute the proceeds. If two parties own half the real estate, the proceeds will divide 50/50; if each owns half, the proceeds will split 50/50.


What other types of relief can a court order in a partition case?

Each party can receive a proportionate share of the property if the court can physically divide the property. Generally, however, this is a rare occurrence since most real estate has a built environment with buildings or homes, which are usually not physically divided between two or more owners.

It is usually only possible to use this solution when the property is unimproved and vacated. Normally, it is more practical to sell the property and divide the proceeds between the owners, even in this situation.


When one owner lives on the property, and the other no longer does?

Property owners who remain in possession do not have the right to prevent the sale of the property simply because they live there.


What are the alternatives to a court-ordered sale in a partition situation?

The parties can still sell the property after a lawsuit without a court’s interference and divide the proceeds fairly. For the parties to follow through on a settlement like this, counsel must prepare a binding settlement agreement.

The other owners can also leave by one co-owner by paying them. Counsel in such situations should prepare a new deed showing ownership.


When an owner buys out the other, how are funds available?

Our firm is responsible for assisting the parties in obtaining financing if necessary. As part of a settlement, our partition of property attorneys will coordinate the closing process in this case and distribute the proceeds to the co-owner.


Bottom Line

Make sure the lawyer is the one you want to represent you and come up with a list of questions. Find out if the attorney is an experienced partition lawyer, business lawyer, real estate lawyer, or estate planning lawyer who is familiar with your area’s laws. Whether you need help with a California Partition Action or a California Business Law action, Attorney Real Estate Group is ready to help.

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