Partition: Breaking Up May Not Be Hard To Do

The purpose of the legal action known as partition is to allow joint owners of property, who no longer desire to own that particular property, to divest themselves of ownership for reasonable and fair compensation. While a partition action can be used for personal property, it is most often commenced with respect to real estate. Also, partition with respect to property owned by husband and wife is a different story and is generally controlled by a separate set of rules.

What many people do not understand is that absent an agreement by the joint owners restricting partition, the right to partition is generally absolute and is incident to joint ownership. In other words, regardless of the reasons a joint owner has for wanting to divest his interest or any objections by co-owners, he typically has a right to pursue an action for partition. If not restricted by agreement, a partition action will eventually lead to a required sale of the subject property with the proceeds being divided in accordance with the respective ownership shares or the court allowing one or more of the joint owners to buy out the other ownership interests. It is also possible that a physical division of the property might be ordered by the court if that can be reasonably accomplished. Notwithstanding, the objections or protests of the other joint owners will largely be irrelevant regarding a joint owner’s right to partition.

While it is always preferable that the parties reach a voluntary and amicable agreement to partition the subject property, a joint owner can compel the process and enforce his rights through a legal action for partition. If an action is commenced, the court will initially determine whether the plaintiff has a right to partition. Again, that review is typically limited to whether the parties reached any previous agreement restricting the otherwise absolute right to partition. On rare occasions, the courts have invoked equitable concepts in denying partition but such denials appear to be largely a thing of the past.

Once the court determines that the plaintiff has a right to partition, it will hold a conference or hearing to determine the method and mode of the actual partition. In other words, it will determine whether the property can be physically divided (example: two acres to Mr. X and two acres to Mr. Y); whether the property should be sold privately or publicly and the net proceeds distributed among the owners; or if one or more of the owners shall buy out the remaining ownership interests. At this juncture, objecting parties may have a voice in the method and mode of partition particularly if collectively they control a majority ownership interest. However, the court will generally do what it believes is the most fair and reasonable thing for all parties.

Often, the court will appoint a person known as a master to oversee the process of partition to promote efficiency and fairness; this may include effectuating a sale of the property and determining various issues regarding proposed distribution of proceeds. The proceeds are generally distributed in accordance with each person’s percentage ownership interest with possible adjustments for previously unallocated repair, expense and income items. The court also has the discretion to charge reasonable counsel fees of the party bringing the partition action against the property or the fund resulting from any sale. Such fees may be apportioned among the parties as the court deems equitable. Surprisingly, and contrary to Neil Sedaka’s hit song, breaking up may not be hard to do.

— Curt Ward