Partition Actions

When two or more persons own a piece of real estate together, the property can only be sold if all owners agree to sell. In situations where one person wants to sell and another person refuses to sell, the person desiring to sell can file a partition action to force the sale of the property. Where larger parcels of land are involved, a partition action can actually request the physical division of the property between or among the owners. In that case, based on testimony concerning the physical characteristics of the property, the court will be asked to determine a fair physical division of the land, so that each part is of comparable value. A partition action for a physical partition of a property is a rare bird these days, at least in urban areas. In most instances, because of the size and nature of a property, it is not practical or legally possible to physically divide a property. When there is no practical way to physically divide a property, partition means that the court will order the sale of the property and the division of the net sale proceeds among the owners according to their respective interests in the property.

Unless the co-owners of a property have signed a contract agreeing to sell only at certain times or under certain conditions, there is no defense to a partition action. A co-owner who wants the property sold will be entitled to an order for the sale of the property. For this reason, in most partition actions, people eventually face the inevitable and settle the case. Otherwise, the court may appoint a referee to market and sell the property, at substantial expense, in addition to the usual broker’s commissions. Furthermore, if the case is decided by the court, the owner initiating the partition action may request and receive reimbursement for the attorney fees and costs incurred, to be paid from the sale proceeds, before the proceeds are divided and distributed among the owners, on the grounds that the attorney fees and costs benefited all owners.