Partition Action In Property Law ; Steps Involved In A Partition Action

Partition Action In Property Law ; Steps Involved In A Partition Action

Partition Action In Property Law

What is Partition Action In Property Law

A partition action is a legal proceeding that allows co-owners of real property to divide their interests in the property. The main features of a partition action are:

  • It is typically used when there are two or more co-owners of a property, and they cannot agree on how to divide up ownership or use of the property.
  • Any co-owner can file a partition action by filing a lawsuit requesting that the court order a partition or division of the property.
  • The court has broad authority in a partition action to either physically divide the property into separately owned parcels, or order a public or private sale of the property with division of the sale proceeds among the co-owners.
  • If the property cannot be equitably divided or sold without great prejudice to the owners, the court may order that one or more co-owners buy out the share of the other co-owners who want to end the co-ownership.
  • Partition actions allow for a division of real property without requiring the consent of all co-owners, providing a legal mechanism to exit a co-ownership arrangement that is no longer workable for one or more of the parties.

Steps Involved In A Partition Action For A Co-Owned Property

Here are the typical steps involved in a partition action for a co-owned property:

  1. Filing the Partition Complaint – One or more of the co-owners files a civil complaint requesting that the court order the property to be partitioned or sold. The complaint will identify all co-owners and their respective interests in the property.
  2. Serving the Other Co-Owners – The plaintiff must properly serve the partition complaint and a summons on the other co-owners per the rules of civil procedure. This gives them notice of the lawsuit.
  3. Discovery – There is typically a discovery phase where documents are exchanged and depositions may occur to gather information about the property and the feasibility of partitioning it.
  4. Court Appoints Commissioners – If the court determines partition is appropriate, it will appoint 1-3 commissioners (often surveyors) to recommend whether partition in kind (physically dividing the property) is feasible or if a forced sale is better.
  5. Commissioners Report – The commissioners will inspect the property, determine if physical division is possible, and then file a report with the court.
  6. Court Orders Division or Sale – Based on the report, the court will order either a physical partition or a forced sale of the property. If a sale is ordered, the proceeds are divided among the co-owners.
  7. Survey & Division or Sale – If partitioned, the property is surveyed and divided. If sold, the sale moves forward under the court’s supervision.
  8. Judgment – Once the property is partitioned or sold, the court enters a final judgment reflecting the division of the property or disbursement of sale proceeds to the co-owners.

The details can vary by state law, but this outlines the major steps in a standard co-owned property partition lawsuit.

How Are The Proceeds From A Forced Sale Divided Among Co-Owners?

The proceeds from a forced sale of a co-owned property are typically divided among the co-owners based on their respective ownership interests in the property. The specific details can vary by state law and the co-owners’ agreement, if any.

As said, the exact division can depend on several factors, including the type of co-ownership, any contractual agreements between the co-owners, and any contributions made by the co-owners towards the property.

Here are a few key points on how proceeds from a forced sale are divided among co-owners:

  • If the co-owners own the property as joint tenants, the proceeds are divided equally among all joint tenants regardless of their contribution to the purchase price or mortgage payments.
  • If the co-owners own the property as tenants in common, the proceeds are generally divided proportionally based on each co-owner’s ownership interest in the property. For example, if A and B each own a 50% interest as tenants in common, the proceeds will be split evenly between them.
  • Expenses related to the sale, such as commissions, closing costs, outstanding taxes and liens, are paid out of the gross sale proceeds before the net proceeds are divided among the co-owners.
  • Creditors with liens on the property, such as mortgage lenders, are entitled to payment of the secured debt from the sale proceeds before any distribution to the co-owners.
  • If a co-owner has made disproportionate contributions to the property, such as a larger down payment or paying more than their share of the mortgage, they may be entitled to an equitable adjustment in the division of net sale proceeds.

Is There A Time Limit Or Restrictions On Initiating A Partition Action?

There is usually no strict time limit on filing for partition of jointly owned property, but there are some general guidelines and restrictions that may apply:

  • Laches – If one co-owner has been in sole possession for a long time without objection from other co-owners, a court may deny a partition action under the equitable doctrine of laches. This focuses on unreasonable delay in asserting one’s rights.
  • Statute of limitations – Many states have a statute of limitations of around 5-10 years on bringing a legal action regarding interests in land. This could bar a partition action if the relevant time has run out.
  • Change in ownership – A partition action generally must be brought by current co-owners of the property. If the ownership interests have changed substantially since the property was first jointly acquired, a court may deny partition.
  • Improvements/changes to property – If one co-owner has made significant improvements to the property with the acquiescence of other owners, a court may deny partition or order compensation.
  • Agreement not to partition – Co-owners may enter into a written agreement not to partition for a specified time. This is generally enforceable if reasonable.

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