Partition in Sale

PALUMBO LAW handles complex partition actions when the parties involved are unable to agree on the fair market value of real estate jointly owned to effectuate the sale of said real estate in accordance with the parties’ respective interests in the property or when one of the parties outright refuses to cooperate with the sale of the real estate.  Attorney Nicole Labonte is an experienced real estate litigation attorney who regularly represents clients in partition matters and real estate disputes.  

Partition is defined as follows “something that separates one part of a space from another, the act of dividing; especially the division of real property held jointly or in common by two or more persons into individually owned interests.  

A good example of a Rhode Island partition in sale action is described below.

Plaintiff (Ms. S.) and Defendant (Mr. B.) jointly acquired real estate, which they resided in together.  Ms. S. and Mr. B. received delivery of an executed Warranty Deed, granting ownership of the Real Property to Ms. S. and Mr. B., as tenants in common, with Ms. S. owning a one-half (½) or fifty percent (50%) interest and Mr. B. owning a one-half (½) or fifty percent (50%) interest in the Property.  

A few years after the execution of the Warranty Deed, Ms. S. and Mr. B.’s relationship ended.  Mr. B. demanded that Ms. S. begin paying rent or vacate the Property. Ms. S. opted to move out.    Notwithstanding Ms. S.’s requests for the same, Mr. B. has refused to cooperate with the sale of the property.  As such, Ms. S. commenced this partition action, seeking to exercise her rights as an owner of the Property and to partition and sell the Property under R.I.G.L. §§ 34-15-1, et seq.

Pursuant to R.I.G.L. § 34-15-16, entitled “Order of sale”: In an action for partition, the superior court may, in its discretion, upon motion of any party to the action, order the whole premises sought to be divided, or any particular lot, portion, or tract thereof or the interest of the plaintiff or plaintiffs or of the defendant or defendants in the whole premises, or in any particular lot, portion, or tract thereof, to be sold, either at public auction or by private contract, under the direction of the court, by the commissioner or commissioners appointed to divide or sell the same; provided, that if the sale is made by private contract, it shall not be made for less than the sum fixed by the court in its decree authorizing the sale by private contract.  Id. (emphasis added).

The above-cited statute seeks to achieve one of the ultimate goals of any partition action, namely, determining whether a division of the real estate may be made by physical metes and bounds, and if not, to order a sale of the real estate in order to complete the partition between two co-owners who are no longer able to cooperate with respect to owning the real estate together.  As also stated in the Rhode Island General Laws concerning partition: All joint tenants, coparceners, and tenants in common, who now are or hereafter may be actually seised or possessed of any estate for life or years in any lands, tenements, or hereditaments, may be compelled to make the partition between them of such lands, tenements, and hereditaments, to continue until the estate of some of the parties to the lands, tenements, or hereditaments shall determine, and no longer, by civil action. R.I.G.L. § 34-15-2 (emphasis added).

The Rhode Island Supreme Court has made clear that, in regard to R.I.G.L. § 34-15-2, “[t]he intent of the statute is to provide in the first instance for the partition of realty by metes and bounds giving to each owner therein his fair and equitable portion of the same, but in the event of its not being practicable to make such a division, and in that event only, the court may in this discretion order a sale of the property and a division of the proceeds.”  Bianchini v. Bianchini, 76 R.I. 30, 34, 68 A.2d 59, 62 (1949) (quoting Lannon v. Lannon, 40 R.I. 60, 62, 9 A. 819, 820 (1917)) (emphasis in original).  In Bianchini, where the real estate sought to be partitioned and/or sold could not practicably be divided by metes and bounds, the Supreme Court held that R.I.G.L. § 34-15-2 “does not apply in the present cause since partition here admittedly cannot be made by metes and bounds. In such circumstances this cause is controlled by the provisions of § 16.” Id. (citing R.I.G.L. § 34-15-16 (Order of sale, quoted supra)). One must be an owner of a fee interest in the property in order to demand partition. Stanton v. Sullivan, 63 R.I. 216, 216, 7 A.2d 696, 698 (1939). Originally, the purpose of the partition laws was to resolve disputes that would arise between fee co-owners of land, who were unable or unwilling to use and/or reside on the co-owned property together.  The partition statutes disallow one co-owner from being able to keep the other co-owner from being able to use and enjoy their jointly-owned land, by permitting the wronged co-owner to seek partition of the land. See Stanton, 63 R.I. at 216, 7. A.2d at 698-99 (citing Freeman, Cotenancy and Partition, § 440, p. 582 (2d ed. 1886)).

Here, Ms. S. is entitled to an Order from this Court appointing a Commissioner to sell the Property and disburse the proceeds from the sale.  It would be impracticable to physically divide the Property by metes and bounds, particularly based upon the location of the home built on the Property and other homes in the vicinity.  Further, there is no question that Ms. S. has not been permitted to use the Property, while Mr. B. has resided therein and used the Property freely, for several years after their relationship ended.  Therefore, this is just the type of situation where an Order appointing a Commissioner and requiring a sale of the Property is warranted.  

Our experienced Rhode Island partition attorneys at PALUMBO LAW are ready to assist you with your partition matter or real estate dispute.  Don’t hesitate – call our office TODAY at 1-401-490-0994.