Disputes between co-owners of real estate property are common. Co-ownership issues frequently occur when one owner wants to sell the property and the other does not. Co-owners may also disagree over the use, management, or disposal of the property. When a co-ownership situation becomes unbearable or undesirable, one of the owners may pursue a partition action to force the co-owner to either sell the property or buy out the other owner’s interest in the property. The commercial real estate attorneys at PALUMBO LAW represent clients throughout Rhode Island, Connecticut, and Massachusetts in partition actions. Here is what you need to know.
The Basics of a Partition Action
A partition is broadly defined as the division of real property and quasi-real property so that either compensation or possession is given to one or more owners of the property. Partition is a unique equitable remedy, dissimilar to many other claims or causes of action, in that it has jurisdiction over the res or object, meaning the subject land or property, but nothing else. The essence of a partition action is to affect ownership of the land or property. The “in rem” jurisdiction will bind the owners of the land, and indeed the world at large, but not insofar as it purports to award monetary damages except to equalize the parties after the partition is effectuated.
Partition actions most commonly deal with disputes over residential or commercial real estate, but do not necessarily involve property by two or more people. A partition action, whether it be for physical division or compensation, may be brought by any person, corporation, or legal entity against another co-owner or life tenant to force a sale. For example, a partition action may involve:
- Any real property owned by a partnership
- Cooperative housing (“co-ops”)
- Commercial buildings
- Homes
- Farms
- Streams and watercourses
- Anything else attached to the land
A partition action starts with the filing of a lawsuit. In order to compel a partition, the plaintiff or petitioner must have a possessory interest in the property. This means that the party seeking partition must have the legal right to possess the property. Depending on the circumstances, the court can exercise its discretion to order a partition by dividing the property physically (by metes and bounds) or by selling the property and dividing the proceeds amongst the owners and interested parties. All individuals, corporations, or legal entities that have an interest in the title to the property at the time of the commencement of the partition action must be included in the proceedings. The court has the authority to determine how to distribute the estate among the parties.
The Types of Property Ownership at Stake in Partition Actions
Understanding the different types of property ownership may help prevent future disputes that lead to partition actions. In a joint tenancy, ownership is shared by two or more individuals who hold an equal, undivided interest in the property. A defining feature of joint tenancy is the right of survivorship which means that if one joint tenant dies, their share automatically passes to the surviving tenant or tenants, bypassing the probate process.
Unlike a joint tenancy, a tenancy in common does not offer the right of survivorship. Two or more individuals own the property, each with their own distinct, separable share. When one tenant in common dies, his or her share does not automatically go to the other owner or owners. Instead, it is passed down to the deceased tenant’s heirs, as stipulated in the deceased tenant’s will or, if no will exists, by the applicable state’s intestacy laws.
A tenancy by the entirety is a form of ownership that is exclusively available to married couples in certain states, including Rhode Island. Similar to a joint tenancy, a tenancy by the entirety includes the right of survivorship, but also adds protections against the actions of one spouse. For example, one spouse cannot unilaterally sell or give away their interest in the property. Partition generally occurs as a result of divorce, converting the tenancy by the entirety into a tenancy in common.
Once the action is commenced, the impending partition cannot be stopped because anyone who wants to dissolve ownership that is jointly owned with another person has the legal right to sell his or her interest if so desired. An owner or interested party who opposes the partition may try to prevent or slow down a forced sale by:
- Challenging the plaintiff’s right to partition the property
- Presenting deeds to show that other parties have a title or ownership interest
- Relying on a waiver of the right to partition in a contract
- Claiming breach of contract
- Buying out the other parties’ interests, if possible
Choose PALUMBO LAW
A partition action can be a complex and potentially contentious process. Hiring an experienced real estate litigation attorney, one who is well-versed in partitions can help ensure that your interests are adequately represented and that the process is handled as smoothly and as efficiently as possible. If you are a property owner facing a dispute with a co-owner, do not delay. Contact the Rhode Island, Connecticut, and Massachusetts partition attorneys at PALUMBO LAW today to discuss your case.
