When property is owned by more than one individual, the co-owners may seek to terminate their joint ownership of the property. The co-owners may voluntary sever their joint ownership by selling the property or transferring the interest to one co-owner. If the co-owners cannot agree on how to divide the property, each of the co-owners has the right to partition the land. A partition action is a legal proceeding by which the undivided joint ownership interest in the property is separated and awarded individually to each owner in proportionate shares. Partitioning property only requires one owner to pursue the partition action because the right to partition a property is an absolute right. The right to partition a property can only be restricted by law, a written waiver in a contract, or a provision in a will. Absent a restriction on partitioning the property, one co-owner can force a partition of the property against the wishes of the other co-owners.
The type of ownership of the land determines how the land can be partitioned. A person who holds an interest in property as a joint tenant or tenant-in-common may compel the partition of the property through a partition proceeding. If the property can be divided without damage to the owners, then the Court will direct that each owner receives separate title to a specific part of the land equal to their percentage of ownership in the land. If the property cannot be divided without damage to the owners, then the co-owner seeking partition has a right to sell the property and divide the proceeds based on each co-owner’s percentage of ownership. If a property is held as tenants by the entirety (i.e. held by spouses), the interest cannot be severed except by consent or as a result of a dissolution. If the co-owners dissolve their marriage, the division of the property will be ordered by the divorce court.
In order to seek a partition of property, the petitioner for partition must conduct a title search on the property to ensure that all individuals with an interest in the land are identified. An appraisal of the property will be conducted to determine the fair market value of the property. Prior to a contested hearing on the partition, the co-owners of the property will be ordered to mediate to see if they can reach a resolution on how to divide their interest in the property. Only if the co-owners cannot agree how to divide the property will the Court order the sale of the property.
If a property is held by joint tenants, then each owner is entitled to an equal share of the proceeds; the law does not allow for equitable adjustments if the property is held by joint tenants. Equitable adjustments are allowed if the property is held by tenants in common. Equitable adjustments may be made based on an owner’s contribution to the cost, maintenance, or improvements to the property.
A partition action is a technical legal action with specific statutory requirements that must be met. A partition action should be brought by an experienced attorney to ensure that your rights as a landowner are protected. Contact the experienced attorneys at Slotegraaf Niehoff, P.C. to discuss your rights as a landowner in a partition action.