Published by C.L. Mike SchmidtSchmidt & Clark, LLP is not currently accepting these types of cases and has posted this content for information purposes only. We encourage you to seek a qualified attorney, if you feel you might have a case.
If you are involved in a property dispute and need to fairly divide jointly owned real estate, you may be entitled to file a partition lawsuit.
At Schmidt & Clark, we help individuals resolve co-ownership disputes through legal action. Our experienced legal team is here to guide you through the process and fight for the fair division of your property.
Contact Schmidt & Clark today for a free, no-obligation consultation.
Partition Lawsuit for Property Division Overview
A partition lawsuit is a legal action when multiple people have the right to a property and can't agree on what to do with it.
This kind of lawsuit commonly happens when family members can't agree on what to do with an inherited property, during divorce proceedings, or after a failed business partnership.
There are three main types of partition:
- partition in kind (physical division)
- partition by sale (property is sold and proceeds distributed)
- partition by allotment (one owner buys out others)
The court oversees the process to ensure fair division based on each co-owner's legal interest in the property.
“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.
Latest Partition Lawsuit Updates
- September 2024 - Recent court rulings have reinforced the right of co-owners to force partition sales when physical division is impractical, particularly in cases involving residential properties where division would significantly reduce value.
- August 2024 - New legal precedents have established updated guidelines for calculating compensation for improvements made by one co-owner, ensuring fair credit for property value enhancements during partition proceedings.
Legal Grounds for Filing a Partition Lawsuit
A partition lawsuit is typically filed when co-owners of a property cannot agree on its use, division, or sale. These disputes can arise in various situations, from family inheritance issues to business disagreements.
The following are the most common legal grounds for seeking a partition action:
Co-Ownership Disputes
When joint owners cannot agree on the use or sale of the property, a partition action provides a legal remedy to resolve the deadlock. This commonly occurs when co-owners have different financial needs or plans for the property.
Inherited Property Conflicts
Family members who jointly inherit real estate often have differing opinions about whether to keep, sell, or divide the property. A partition lawsuit can resolve these disagreements when consensus can't be reached.
Divorce-Related Disputes
When separating spouses cannot reach an agreement on dividing jointly owned property through divorce proceedings, a partition action may be necessary to ensure equitable division.
Business Property Disputes
Business partners who co-own commercial real estate may seek partition when dissolving their partnership or when disagreements arise about property management or usage.
Types of Property Division in a Partition Lawsuit
When co-owners cannot agree on how to divide a property, courts use different methods to ensure a fair resolution [1].
The chosen method depends on factors like the type of property, its value, and whether physical division is practical. Below are the primary ways a court may handle property division in a partition lawsuit:
Partition in Kind
The property is physically divided among co-owners based on their shares. This works best for larger, easily divided properties, like agricultural land. Courts generally prefer this method unless it causes significant harm.
Partition by Sale
If dividing the property would reduce its value, the entire property is sold, and the proceeds are distributed based on ownership. This is common for residential properties where physical division is impractical.
Partition by Allotment
One co-owner is granted full ownership of the property and compensates the others for their share. This is typical in family estates when one party wants to retain the property, like a family home, and buys out the other's interests.
Do You Qualify for a Partition Lawsuit?
You may qualify for a partition lawsuit if:
- You co-own real estate with others through joint tenancy, tenancy in common, or as tenants by the entirety.
- You and the other owners cannot agree on how to use, manage, sell, or divide the property.
- You have made reasonable attempts to negotiate a solution without success.
- You have legal documentation proving your ownership interest in the property.
Evidence Required for a Partition Lawsuit
- Property Title Documents: Deeds or title documents proving property ownership that serve as the foundational evidence of your claim.
- Ownership Interests: Documentation outlining the percentage of ownership each co-owner holds to clarify who owns what share of the property.
- Financial Records: Any records showing financial contributions made by each co-owner, such as mortgage payments, property taxes, and maintenance costs, which help clarify ownership rights.
- Appraisal Reports: Professional appraisals to determine the property's fair market value for equitable division or sale.
- Any Relevant Agreements: Written agreements between co-owners regarding property use or financial obligations.
- Evidence of Disputes: Documentation of disagreements about property use or management to strengthen your case.
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Damages and Compensation in a Partition Lawsuit
- Equitable distribution of property or proceeds from the sale based on ownership interest
- Compensation for improvements one co-owner made that increased the property's value
- Reimbursement for disproportionate payments of property expenses such as taxes, mortgage, or maintenance costs
- Recovery of legal fees in some jurisdictions, depending on court discretion and state law
Court Procedures for a Partition Lawsuit
Filing the Lawsuit
The plaintiff submits a petition to partition or a partition action to the court where the real estate is located, naming all co-owners. A default notice, a document notifying everyone with ownership interest of the suit, is filed at the same time.
Court Review
The judge issues an interlocutory judgment establishing that the plaintiff has the right to partition. This judgment sets forth property owners' interest in the property and orders the real estate to be partitioned.
Property Appraisal
The superior court appoints a referee whose job is to oversee the partition action and ensure it's done fairly according to all joint tenants or owners' interests. All individuals with ownership rights are obligated to pay for the referee's legal fees.
Final Judgment
If all parties are willing to cooperate, the result can be reached without litigation. If the parties can't reach an agreement, the court makes a final decision in the partition case, either dividing the property or ordering its sale.
Statute of Limitations for Partition Lawsuits
Partition actions typically don't have a specific statute of limitations since they're based on current property ownership rights. However, related claims, such as accounting for contributions or improvements to the property, may be subject to time limitations. These vary by state, typically ranging from 2-6 years.
Some states might apply laches doctrine, which can bar a partition claim if there's been an unreasonable delay in bringing the action that has prejudiced other parties.
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FAQ
1. How do I file a partition lawsuit?
To file a partiion lawsuit, you need to be familiar with the partition statute in your state. Consult a real estate attorney, who will explain your legal rights and help you file the suit by submitting a formal petition to the appropriate court with all required documentation.
2. How long does the legal process take?
The legal process can take several months, with different stages requiring varying amounts of time. Document preparation typically takes 1-2 weeks, filing the petition takes 1 day, service of process takes 1-3 weeks depending on location, court hearings may take 2-6 months depending on court schedules, and final judgment and distribution usually takes 1-3 months after hearings.
3. Who qualifies to file a partition lawsuit?
Any co-owner with a legal interest in the property qualifies to file a partition lawsuit, regardless of the size of their ownership share, as long as they can prove their ownership interest.
4. How are partition settlements determined?
Partition settlements are determined based on each owner's legal interest in the property. The court considers the property's fair market value, contributions made by each party for improvements or maintenance, and whether the property can be physically divided or must be sold with proceeds distributed proportionally.
5. Can I recover money for improvements I made to the property?
Yes, you can recover compensation for improvements that increased the property's value. The court will consider documented expenses for renovations, additions, or significant maintenance that enhanced the overall property value when determining equitable distribution or adjusting sale proceeds.
6. Can a partition lawsuit force a sale of my property?
Yes, a partition lawsuit can result in a forced sale if the court determines that the property cannot be physically divided without significantly reducing its value. This is particularly common with residential properties, where physical division would be impractical or would diminish the property's market value.
7. What happens if one co-owner refuses to sell or cooperate?
If one co-owner refuses to cooperate, the court has the authority to proceed with the partition action without their consent. The court may appoint a referee to oversee the process, force a sale, or divide the property, ensuring all owners receive their fair share regardless of cooperation.
8. 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, with expenses often deducted from sale proceeds before distribution.
9. Can I appeal if I disagree with the court's decision?
If you're dissatisfied with the court's decision, you may be able to appeal based on legal errors (not factual disagreements) made during the trial. Appeals must be filed within the prescribed timeframe (usually 30 days from judgment), and the appellate court will review the case record and may uphold, reverse, or remand the decision.
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Partition suits can be difficult, especially if one co-owner wants to prove they have 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-c
References:
1.) https://www.investopedia.com/terms/t/tenancy_in_common.asp