How to File a Partition Lawsuit for Property Division?

Real estate is expensive, and multiple parties often own one property through a gift, inheritance, or other means. Sometimes disagreements between the co-owners can occur.  For example, one person may want to keep the property, while the other co-owner may want to sell it. A partition lawsuit can be the best way to decide what to do. 

Schmidt & Clark lawyers have dealt with numerous property lawsuits. Here’s everything you should know about filing a partition lawsuit so that you can protect your real estate interests.

Summary of the Key Findings

• A partition suit is a legal action when multiple people have the right to a property and can’t agree on what to do with it.
• There are three kinds of property ownerships that have the right to file a partition suit.
• You need an attorney to help you find the legal remedy for a partition action.

What are Partition Lawsuits?

Partition lawsuits happen when two or more people have ownership of one piece of property, and they can’t agree on what to do with it.  For example, one party wants to sell, the other wants to rent, and the third wants to build a new structure.

This kind of lawsuit commonly happens when family members can’t agree on what to do with the actual property, during divorcee proceedings, or after a failed business partnership.

“The purpose of a partition proceeding is to eliminate a present concurrent interest in the same property so that each owner may enjoy and possess their interest in severalty.” Cornell Legal Information Institute

Partition action usually ends in two ways:

• The court orders the sale of the real property at auction or private sale. Each co-owner gets an equal share of the sale proceeds.
• The court awards ownership to one person and orders them to buy the interest from other co-owners. This only happens in rare cases.

Most commonly, this lawsuit ends up in a forced sale. Partition is different from other lawsuits, such as quiet title and ejectment.

Partition requires a common title or interest in the property and not two competing property ownership claims.

Who Can File Partition Lawsuits?

Three kinds of property co-ownership have the right to petition to partition [1]:

• Joint tenancy
• Tenancy in common
• Tenancy by the entirety

In all three of these, if the property in question is a home, it’s owned as a whole, which means no rooms are off-limits.  Once the partition suit is filed, the court examines if the co-owned property can be physically divided between the owners. 

A person who wants to dissolve ownership of a jointly owned property has the right to sell their interest.

Process of Filing for a Partition Suit

To file a personal property lawsuit, you have to be familiar with the partition statute in your state.  You should consult a real estate attorney, who will explain your legal rights and help you file the suit.

Here’s what the partition process looks like:

• File a petition to partition or a partition action — It has to be filed in the court where the real estate is located, and all co-owners have to be named. A default notice, a document notifying everyone with the ownership interest of the suit, is filed at the same time.
• Judge issues an interlocutory judgment — The court decides that the plaintiff has the right to partition. Once this right has been established, the judge will issue an interlocutory judgment. The judgment sets forth property owners’ interest in the property, orders for the real estate to be partitioned, and decides how it will be partitioned.
• Appointing a partition referee — The superior court has to appoint a referee whose job is to oversee the partition action and make sure it’s done fairly and according to all joint tenants or owners’ interests. All individuals with ownership rights are obligated to pay for the referee’s legal fees. 
• Reaching the solution — If all parties are willing to cooperate, the result can be reached with no litigation. Your attorney can negotiate a partition agreement out of court. If the parties can’t reach an agreement, the court makes a final decision in the partition case.

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3 Different Types of Partition Lawsuits

There are three different kinds of partition actions. Here’s an overview of each.

1. Partition in Kind

Partition in kind is also known as an actual partition, and it happens when all parties come together and the property is divided into equitable shares.  It means each co-owner gets a share equal to their ownership interest, and the property is divided into separate parts.

This partition mostly happens when the property is large enough, so each co-owner has a decent-sized plot.

2. Partition by Sale

Partition by sale, also called partition by an appraisal, is the most common kind of partition action.  It happens when the property is sold either at an auction or by private sale at fair market value.

The proceeds are split between all the owners according to their interest in the property.

Partition by sale usually happens when it’s difficult to divide the property, or the owners don’t get along and don’t want to have parcels next to each other.

3. Partition by Allotment

In partition by allotment, one person gets the whole ownership, and they have to buy out the rest of the owners. It happens rarely, and it’s not possible in every partition suit. It usually happens in estate cases, where several siblings get ownership of the family home.

If one sibling wants to remain living there, and the others want to move out, this sibling has the right to buy out the rest of the family.

Related Articles:

• Understanding the Types of Legal Fees
• Highest Paid Types of Lawyers
• What Happens to a Lawsuit When the Plaintiff Dies?
• Will I Lose My Home if I Don’t Pay the Property Taxes?

FAQ

How Much Does a Partition Suit Cost?

Partition suits can cost between $20,000 and $100,000, depending on the attorney’s fees. Attorney fees and other costs are usually paid according to each party’s legal right to the property.

Get Help From a Trustworthy Law Firm

Partition suits can be difficult, especially if one co-owner wants to prove he has an undivided interest in the land.  The suits most commonly end up in the sale of the property, and the money is divided between each property owner. If you find yourself in a situation that requires a partition suit, the Schmidt & Clark team of experienced lawyers can assist you.

Our lawyers are familiar with laws in each state, and we value each attorney-client relationship equally.  Contact us today to establish your property ownership.

References:

1.) https://www.investopedia.com/terms/t/tenancy_in_common.asp