Division Of Property By Partition

By: Lance T. Denha, Esq.

When you own property, you have the exclusive rights to possess and control the property, to use the property for pleasure or for profit. You have the right to dispose of the property during your lifetime by contract, deed, grant, lease or gift. Depending upon the form of ownership, you may have the right to dispose of it at death. You also have the responsibility for all expenses and other charges in connection with the property.

When one person owns the property, all of these rights and responsibilities are vested in that individual. When two or more persons own the property, there must be some method of allocating the rights and responsibilities between the various co-owners. Imagine that you own a property or a parcel of land with another person – a sibling, a friend, or a spouse. But then your interests diverge; you and that person have different ideas about what to do with the property; in particular, how to use, improve, or dispose of it. A partition action is something that the law offers to those persons who feel that they are better off without a partner. In fact, the process has been referred to a “peace maker” between the parties.

Co-owners of property can often times be family members, business partners, or mortgage holders. The most common forms of co-ownership include:

• tenancy in common is used when property is held by two or more persons and, upon death, each owner’s interest passes to his heirs or devisees;
• joint tenancy with right of survivorship is used when property is held by two or more persons and, upon death, each owner’s interest automatically passes to the other co-owners;
• tenancy by the entirety is a type of joint tenancy that applies only to husband and wife during the marriage; and
• community property is statutorily created joint ownership that applies only to husband and wife who reside or own property in a state that has enacted the community/marital property laws

So how does a partition action work? There are two types of partition of property. The first type is a partition by sale, and the second type is partition in kind.

First, a partition in kind, also known as an “actual partition,” severs the individual interest of each joint owner. Each owner ends up controlling an individual, divided portion of the property. This is the most common type of partition, and tends to be easiest when the parties generally get along, but simply disagree about the best use of the land, and also where the land is easily divided into discrete portions. This allows for a “conscious uncoupling” where each person takes a piece of the land as his or her own, and records that division with the county clerk.

Second, a partition by sale is accomplished by selling the entire property and dividing the proceeds among the owners. This type of partition is used when partition in kind is difficult to perform or when the parties cannot agree. If, for example, the property is a small lot with one cottage on it, or something equally hard to slice down the middle, partition by sale might be the best bet. The co-owners will sell the land, dividing up the proceeds, and each have the opportunity to go out and buying their own, separate properties.

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 that’s usually favored by courts, for the sake of maintaining peace between the parties.