Updated on September 26, 2023
What is a partition in real property and when are they most commonly used? If you co-own property with one or more people, you might find yourself having to file a partition action. Partition actions are lawsuits that are usually filed by co-owners of property to divide common interests in the property or, more commonly, to force a sale. In this blog, we will be discussing Partition in Real Property – Definition & Ways of Partitioning real property, the rights to partition, and how a waiver could limit rights.
Partition of real property means the division of common interests in the property. This occurs when at least two people jointly own property and they wish to divide their common title. As a result, the partition would segregate and terminate their common interests in the property. This is usually accomplished either through a forced sale. On the rarest of occasions, however, it can be accomplished though an actual physical division of the property.
Every co-owner has an absolute right to partition unless defenses such as waiver or estoppel exist. Indeed, the right to partition can be waived if the co-owners entered into an express or implied agreement to waive the right to partition.
If no defenses exist, then each co-owner may seek to partition the property. This can be done through the agreement of all co-owners or through a legal action if not all co-owners agree. There are three ways to partition a property:
(1) physical division;
(2) sale of the property and division of the proceeds; or
(3) by appraisal where on co-owner purchases the interests of the other co-owners based on a court-ordered appraisal.
The most common way of partitioning a property is through a sale of the property and then dividing the proceeds. This is because unless the property is vacant land, most properties cannot be physically divided. Moreover, even if the property is vacant land, the division of the property may substantially diminish the value of each owners’ interest or the property cannot be divided into parcels of equal value. Furthermore, one co-owner often does not have the financial means to purchase the interests of the other co-owners. If they do have the means, then we usually help our clients through a refinance of the property that allows a cash out buy out of the co-owner’s interest.
At Schorr Law, our partition attorneys rarely see partitions by appraisal. This is true because a partition by appraisal requires the co-owners to expressly agree upon the statutory scheme for an appraisal based buy out. But, most of the time if one owner is going to buy out another owner they do that through a negotiated settlement as opposed to the court’s statutory scheme for handling these types of transactions.
That said, the majority of partition actions seek the sale of the property and division of the proceeds based on each co-owners’ proportional interest, which subject to an accounting of each co-owners’ income and expenses on the property.