Partition Action

Absolute Right

Often people are involved in bitter disputes with a co-owner of real estate, often a sibling. Many believe that they have no recourse, that they are stuck in this relationship because their parent or relative left them a fractional interest, in their will.

The right to partition is an “absolute right,” which can be restricted only by law, written waiver, or a provision in a will. The right can be used at any time even if it’s not referenced in a contract. Partition is a remedy favored by courts to maintain peace between the parties.

How To Bring a Partition Action

To bring a partition action, a landowner must bring a complaint before the Court in which the real estate is located. The complaint must be signed by the landowner, set out a detailed description of the property to be partitioned, name the parties with an interest in the property, even lenders, tenants, lien-holders or local taxing bodies, with the specific interests detailed and request the property be partitioned or sold by the Court. The Court will then ascertain the rights and interests of the parties in accordance with the information contained in the complaint.

Hot Tip

Often, a Court will appoint a commissioner, usually an appraiser or other similar real estate expert, to determine whether the property can be divided “without manifest prejudice to the rights of the parties” and recommend a method of division.

If it Can’t Be Divided

If a property cannot be divided, a sale is recommended. Upon a sale of the subject property, the parties, will receive sale proceeds in accordance with their respective rights of co-ownership.