Real estate partitioning is a legal procedure that divides property between co-owners who cannot agree on its use or disposition. This guide is intended to give a complete understanding of the process, types and legal framework that govern it. It also explains what co-owners should expect during the partition action.
1. What is real estate partition?
Real estate partition is the process of dividing jointly owned property into separate portions or valuing each part. This is usually necessary when the co-owners are unable to agree on how the property will be managed or sold. The division can be voluntary if the co-owners agree, or it can be judicial if the court is involved to settle disputes.
2. Different types of partition
Two primary types of partition exist: partition in kind (in-kind partition) and partition by sales.
- Partition in Kind: In this type, the property is physically divided into sections with each co-owner getting a particular section. When the property is able to be divided equitably without affecting its value, it’s often preferable to use partition in kind. A large parcel of land, for example, could be divided into smaller parcels.
- Partition by Sale: If physical division of the property is not possible or would cause a loss in value, a court can order that the property be sold. The proceeds will then be divided among co-owners based on their respective interests. This type of partition is used when the property in question is a commercial or single-family house that is difficult to divide.
3. Partition: Legal Framework
While the legal framework for partitioning actions may vary by jurisdiction, certain fundamental principles are universal across most regions.
- Right to Partition – In general, any coowner may request a division. This is a right that comes with co-ownership. It allows one co-owner the option to leave a joint ownership arrangement.
- Equity Considerations Courts are concerned with achieving a fair outcome for all parties. They take into account factors like the contributions of each co-owner to the purchase and maintenance of the property, and any agreements between co-owners.
- Partitioning begins by filing a complaint with the court. The complaint details the co-ownership and asks the court to divide the property. The court evaluates the property and determines which method of partition is most equitable. It then issues a judgement.
4. The Steps of a Partitioning Action
Understanding the steps in a separation action can help coowners navigate through the process more efficiently:
- The first step is to file a complaint with the court. The complaint should contain details about the property and ownership rights, as well as the desired outcome (partition by sale or in kind).
- All co-owners must be informed of the partition action. The proper notice will ensure that all co-owners can take part in the proceedings, and make their arguments.
- Property Appraisal. The court can appoint a property appraiser to determine the value of the property. This appraisal is used to determine the fair division of property or its sale price.
- Hearing and judgment: In a court hearing, all parties are given the opportunity to present their case. The judge will decide on the best method of partition based on the evidence presented and the arguments made. The judge may order the physical division of property or its sale.
- Distribution of Proceeds – If the property is sold and sold, proceeds are divided among co-owners in accordance with their respective interests. Legal fees, appraisal costs and other costs related to the partition action are usually deducted from the proceeds.
5. Partitioning Actions: Challenges and Reactions
Partitioning can be a complex and contentious process, often involving multiple challenges.
- Co-Owner Disagreement: Usually, the fundamental reason for a separation action is a disagreement between co-owners. These disputes can escalate and prolong the process of partition.
- Value Disputes – Co-owners can disagree about the value of a property, particularly if they made unequal improvements or contributions. Appraisal differences can cause further conflict.
- Partitioning can be costly, with legal fees, court costs, and appraisal charges. These expenses may affect the net proceeds of the partition.
6. Alternatives to Partition
Co-owners may want to consider other dispute resolution options before pursuing a division action:
- Mediation: An impartial mediator can assist co-owners in negotiating and reaching a mutually agreeable agreement without the need for court intervention.
- Buyout: A co-owner may buy out their partner’s interest, allowing the owner to keep sole ownership. This option requires an agreement on terms and price of the buyout.
- Selling the Property. Co-owners may agree to sell their property and split the proceeds, without having to go through a formal division action. This can reduce costs and save time.
Real estate partition can be a useful legal remedy to resolve disputes between co-owners. This process, whether it is a court-ordered or voluntary partition, ensures that all co-owners are treated fairly when they leave joint ownership. Co-owners can navigate the process more effectively if they are aware of the different types of partitions and the legal framework. Alternative dispute resolution may provide a cost-effective and amicable solution. Partitioning successfully requires clear communication and careful planning.
This article was written by a Bonardi & Uzdavinis professional. Bonardi & Uzdavinis LLP, a boutique full-service law firm, provides its clients with a variety of legal representation. Our primary areas include real estate attorney parrish fl , commercial litigation, construction, personal injury and probate. Contact us for a free case evaluation if you need a personal injury or real estate attorney in Tampa Bay.