The first recourse is to have the parties resolve the ownership situation amicably. One party can sell his interest to the remaining owner. Alternatively, both parties can sell the property to a third party and split the proceeds in accordance with their respective ownership interests.
Sometimes, however, one or more owners may act unreasonably. In these situations, the courts have a remedy: partition of the real property. Partition is an equitable proceeding (meaning that the judge can apply principles of equity) to divide real property among co-owners. Although most common in divorce proceedings, partition is available in any situation where more than one person owns property.
An action for partition is generally commenced by one of the owners filing a lawsuit against the remaining owners request that the court partition the property. The lawsuit must be filed in the county where the property is located. If the circumstances are appropriate, a court has the power to order the parties to participate in a partition hearing even if the complaint did not specifically request such a remedy (because partition is an equitable remedy).
Ideally, the court will divide the property into portions equal to the number of owners with each portion being the same approximate value. Thus, if there are three owners, the court would divide the property in three equal parcels, with each owner thereafter owning his or her third in fee simple. If the property cannot be divided into equal parcels (because such a division is geologically or legally impossible) the court will order the property to be sold. Courts favor a private sale among the owners. However, if the owners are unable or unwilling to purchase the property from the other owners, the court will order the sale of the property to a third party.
Whatever the option, the court’s order will contain instructions as to how the proceeds are to be divided. Typically, the court will order that the cost of satisfying a lien on the property (a mortgage, for example) to be deducted ratably out of each owner’s gross proceeds. As partition is an equitable action, however, the court has the discretion to require one of the owners to satisfy the entire lien out his share. (A court may require such an order where one of the owners fraudulently obtained a mortgage against the property and used the proceeds of the mortgage for things not connected to the property).