Suit for Partition

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“When co-owners cannot agree on whether to sell or keep a piece of property, a partition suit can be an effective remedy. Your strategy for the Suit for Partition actions will differ according to what you plan to accomplish with the property you are suing.”

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Suit for Partition

Hiring a real estate lawyer who can help you create a winning strategy, prepare partition action forms, and present your complaint to a judge is important.

 

What Partition Means?

The partitioning process divides jointly held properties into separate portions and transfers them to the relevant parties. The joint ownership ends upon partitioning, and the respective parties own the eligible shares.

A partition, in another sense, refers to transferring the monetary value of a share of the joint property to a person. The shareholders are then granted exclusive rights in the joint properties. As a result, joint possessions of co-owners become exclusive possessions for each shareholder.

An arrangement in which preexisting rights of co-owners/coparceners are reassigned or adjusted among them, thus dividing the property jointly by them into distinct lots or portions and distribution thereof to the shareholders.

When joint ownership ends, the shares vest in each of them severalty, and the joint ownership terminates. It is only possible to partition property among those who have an interest or share in the property, not among those who don’t have an interest or share.

 

Partition Suits

Real estate owners can file a partition suit if they disagree on whether or how they should sell the property or whether one person should live there. A partition suit is a civil action filed in the Circuit Court where the real property lies if they disagree over whether or how to sell the property.

 

What Happens In A Partition Action?

In other words, what is a partition action? Depending on state law, the exact procedure will differ. In general, it will look the same everywhere. The plaintiff must include all co-owners and any party with a lien or mortgage as parties. A court-appointed appraiser appraises the property.

The Sheriff then auctions the property after a specified notice period. At the auction, the property can sell for 2/3rds of its appraised value; if no one bids at least two-thirds, the plaintiff must conduct another auction.

It is possible to terminate the co-ownership by filing a partition action when one co-owner does not wish to remain a co-owners. The court forcibly sells jointly owned property at auction and distributes the sale proceeds among the owners.

Co-owners often receive 100% ownership of fractional pieces of the jointly owned property when the court divides the property into pieces. Splitting a building literally would destroy its value. Splitting the proceeds is unhappy for any party, so courts usually impose a forced sale.

 

Alternatives to a Partition Action

To evaluate all other options before proceeding with a partition, consider its cost and time. When helping clients who wish to leave a co-ownership situation, I send a letter to the other co-owners explaining the problems with co-ownership and why my client wishes to exit it.

Occasionally, the other co-owners can buy my client out of the property, which solves the problem. You can explain to the other co-owners that they have the legal right to file a partition to pressure them to sell the property.

In the letter, they have three choices:

  1. Buy out my interest.
  2. Sell the property voluntarily.
  3. Prepare to take legal action to force the sale.

Often, this approach results in a voluntary sale of the property since no one wants a lawsuit.

 

General Matters Relating To the Partition Suit

A suit for partition begins with the court determining if the plaintiff has a share in the suit property and if they are entitled to separate possession and division. A partition suit must be brought by all persons entitled to shares.

 

General Matters Relating To the Partition Suit

 

The person to whom the joint property passes (alienee) becomes a party if any part of the joint property has already passed to them. Accordingly, the plant must outline the parties’ relationship, the plaintiff’s share of the property, and any outstanding debts and liabilities.

 

Possibilities in a Partition Suit

One possibility in a partition suit is that the property is “incapable of division.” The other possibility is that the property is “dividable.”

Assuming neither party wants or can purchase the other party or parties share(s), the Judge decides how to sell the property. You can either 1) list your property with a realtor for six months to see if it sells or 2) conduct a sale by a commissioner appointed by the Judge.

The commissioner advertises the property and usually conducts the sale there, giving prospective buyers time to view the property before bidding begins. In either case, the Judge must approve the sale. It follows above that commissions (to realtors or commissioners) receive payment, and proceeds go to sellers.

One- the property can divide. If the parties can negotiate a division, one party may take the land while another party or parties sell their shares.

 

Frequently Asked Questions about Partition Matters

 

What is a common type of relief?

The common type of relief is an order of sale of the real estate and a division of the proceeds among the owners. Depending on the ownership interests of the two parties, the proceeds would go 50% – 50% so that each party owns half the real estate.

The court may order the property to be physically divided, with a proportionate share allocated to each party. It is typically impossible for many owners to share the property physically.

It is usually only possible to apply this solution when the real estate in question is unimproved and vacant. The property sale proceeds usually go back and forth between the owners, even in this situation.

 

Why do we need to take partition actions?

There are many cases where a property has one owner who then passes away. Multiple owners may have different goals and aspirations for the property after the deceased pass on their property ownership in their will or by operation of law.

In cases where the parties cannot agree on how to use the property, partition actions can result. Some couples may buy the property and own it jointly but never marry. Separated couples may disagree on how to use the property, resulting in a partition action.

 

Bottom Line

It is always important to agree on as many details between or among the parties as possible since that will allow them to resolve their differences more quickly and economically.

Most parties hire an attorney to represent them in a partition suit, though some do not hire one (are pro se). Often, having two (or more) attorneys work towards a solution, without the confrontation and emotions of the parties, helps to speed up the resolution. Anyhow, keep the dispute from going unresolved for years.

Hedy Ghavidel

HEDY GHAVIDEL Managing Attorney  Roseville Office  1-866-471-6981  info@attorneysre.com Bio...

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