What Is a Partition Action?

A partition action is a legal process that forces the sale or division of jointly owned property. Joint ownership of property can lead to disputes about how to manage or sell the property, and a partition action can help resolve conflicts by allowing the courts to decide how the property should be divided or sold. 

Let’s look at who can seek a partition action, the different types of partition actions, the process of a partition action, and how to be successful in the process.

Partition action definition

A partition action is a civil lawsuit between property co-owners who disagree on how to manage their property or whether to sell it. It’s a legal remedy used to resolve disputes by forcing the division or sale of the co-owned property. The court essentially acts as a neutral third party to determine the most appropriate and fair way to settle the dispute.

Who can seek a partition action?

Anyone who co-owns real property can file a petition for a partition action. State laws give property owners who share ownership of real property the right to file a partition lawsuit and request a forced sale of the property. 

People seeking partition actions have undivided interest in a property, which means that each co-owner owns a percentage of the property and has equal rights to the property. 

Types of property ownership with undivided interest include the following deed types:

• Tenancy in common. Tenancy in common is when unrelated parties share ownership interests. Even if the shares are unequal, all parties have the right to use the entirety of the property.  
• Joint tenancy. Joint tenancy is when two or more parties own property jointly and have equal interest in the property and the right of survivorship. The right of survivorship means that if one joint tenant dies, the other party automatically gets the decedent’s share of the property. 
• Tenancy by the entirety. Tenancy by the entirety is shared property ownership between married couples. It provides the right of survivorship and prohibits one spouse from transferring ownership interest in the property without the consent of the other spouse. 

Here are a few common situations in which a partition action may be initiated:

• Family members inherit property together but disagree on whether to rent or sell it.
• Business partners are dissolving their business and don’t agree on how to manage their real estate investments.
• Friends are moving out of a home they purchased together and can’t agree on what to do with the house.

There are certain scenarios in which the right to partition action might be limited, such as if the co-owners sign a legally binding contract agreeing to waive their right to partition, or if a will or trust contains a specific clause prohibiting their heirs or beneficiaries from selling inherited property. 

Types of partition actions

A partition action doesn’t always involve a forced sale; some partition actions require co-owners to equitably divide the property or enable co-owners to buy each other’s shares. 

The different types of partition actions include partition by sale, partition in kind, and partition by appraisal. The type of partition action the court orders depends on your unique circumstances. 

Partition by sale

A court will often order a partition by sale if the property can’t be divided equitably or if a co-owner wants to sell their share of the property. 

For instance, family members who inherited a single-family home together and can’t agree on how to use the property may need to divide the property through a partition by sale. 

If a court orders a partition by sale, it may allow the property to be sold through one of the following:

• A private sale 
• Sale in a public auction 
• Listing the property with a realtor

Once the property is sold, the proceeds from the sale are split between the co-owners.

One issue with a partition by sale is that a forced sale can dispossess co-owners of their ownership of a property. 

Some states have enacted laws such as the Uniform Partition of Heirs Property Act (UPHPA) to help protect co-owners from dispossession. The UPHPA was designed to help keep economically disadvantaged heirs from losing their property to a partition action. 

States that have enacted the UPHPA or similar laws may require the co-owner who wants a partition sale to give the other co-owners the chance to buy them out of their share of the property, among other requirements.

For instance, California’s Partition of Real Property Act applies to all real property held in tenancy in common. It requires courts to notify the defendant (the party that the lawsuit was filed against) when a plaintiff requests a partition by sale. The notification lets the defendant know they have the right to purchase the property before a partition by sale takes place.Defendants have the opportunity to purchase the plaintiff’s share of the property at either its appraised value, a value that all co-owners agree to, or a court-determined fair market value.

Partition in kind

A partition in kind (also known as partition by physical division) is when a court orders a property to be physically divided between the co-owners in proportion to their respective shares. 

For example, if two co-owners own equal shares of 10 acres, the court may give each co-owner five acres. 

If all the property owners agree to the division terms and the property is easily divisible, a partition in kind can be a beneficial option. Courts will often determine whether a partition in kind is possible before moving to a partition by sale. 

However, if the parties disagree or the property is difficult to divide (such as in the case of commercial property or a single-family home), a partition by sale or partition by appraisal may be a better solution.

A partition in kind may be legally required if the property can be divided without causing economic harm. 

Partition by appraisal

Partition by appraisal is when a court allows property to be divided based on its appraised value. With a partition by appraisal, interested parties in a partition action agree to have an independent appraiser determine the value of the property. The appraiser establishes the fair amount that a co-owner can pay to buy out the individual who wants to sell their share of the property. 

A partition by appraisal encourages cooperation between co-owners as they must voluntarily agree to move forward with the process, and allows co-owners who want to keep possession of their share of the property to do so. 

The process of a partition action

The steps for filing and pursuing a partition lawsuit typically include filing a complaint, serving the co-owners, participating in the discovery process, and going to trial if an agreement can’t be reached.

Step 1: File a partition complaint

The plaintiff files a petition with the court requesting a partition action. The plaintiff may need to pay filing fees when they file the partition complaint.

A partition petition will generally include the following information:

• The names and addresses of each of the defendants and co-owners
• A description of the property
• An explanation of how the property is currently divided
• The plaintiff’s reasons for filing the complaint
• Each co-owner’s percentage of ownership and nature of interest
• A list of anyone who holds a mortgage or lien on the property

Step 2: Serve the complaint

The plaintiff must serve the co-owner the summons and complaint, which notifies the defendant about the complaint and gives them a chance to respond. If the defendant does not answer the complaint within the required timeframe, a default judgment may be issued against them.

For example, in California the defendant has 30 days after receiving a summons to respond to a complaint. If they don’t respond, the court may rule in favor of the plaintiff.  

Step 3: Discovery

The discovery process is when the defendant and plaintiff gather evidence and exchange information to prepare for the case. 

Step 4: Negotiate terms

If co-owners can come to an agreement about how to sell or divide the property, they may be able to avoid a trial. Settling real estate disputes out of court can save time and money and help co-owners preserve their relationship. 

Step 5: Attend trial

If no settlement can be reached, the co-owners will have to go to trial. 

The court may appoint a partition commissioner to oversee the partition process. The commissioner is responsible for determining whether a partition in kind is feasible. If a partition in kind is not possible, the commissioner will take charge of managing the partition by sale or partition by appraisal. 

The judge will listen to the arguments from each side and look at evidence:

• How long the co-owners have owned the property
• Sentimental attachments to the property, such as if a home has been in a family for several generations
• How the property is currently being used (such as if it is being lived in by one of the parties) and what effect the partition action will have on that use
• To what extent each party has contributed to improving or maintaining the property

The judge will then decide on how the property should be divided or sold.

Navigating the partition action process

Dealing with conflicts concerning jointly owned property can be complex, time-consuming, and emotionally draining. An experienced attorney can be an invaluable resource during the process and help you avoid roadblocks.

Here’s what an attorney can do for you:

• Explain what type of partition action is appropriate and practical for the property type
• Outline how tax implications and market conditions could affect the sale of the property  
• Ensure that you have the necessary documents (such as title deeds, liens, and property agreements)
• Help you and your co-owners work towards settling conflicts through mediation or alternative dispute resolution
• Represent you in court should a partition action be necessary

How to win a partition action

Whether you want to sell or stop the sale of a property you co-own, there are a few strategies that can help you win a partition action.

• Communicate. Direct communication with your co-owner(s), the court, and your lawyer is essential. Partition actions can be confusing and draining; writing down your goals and motivations can help you clearly convey your intentions and stay focused. 
• Keep records. You should maintain detailed records of all of your property-related documents to support reimbursement requests and demonstrate proof of ownership. 
• Negotiate. Negotiation can help you avoid lengthy litigation. Mediation is a common negotiation tactic that can help you reach an agreement with your co-owner(s) for a voluntary sale or buyout. Remember to remain open-minded, clearly communicate your desires, and maintain your composure during negotiations.
• Consult with an attorney. A skilled attorney can ensure that you have the necessary documents, help you work toward an agreement with your co-owner(s), and protect your interests in court during a partition action.

Resolving conflicts with your co-owners can be challenging, but a lawyer can guide you through the process, reduce stress, and advocate for your needs.

FAQs

How much does a partition action cost?

A partition action can be expensive. If your goal is to sell your share of a property to get extra cash, you should factor in all of the potential costs of the partition action, which can take a substantial chunk out of the proceeds. 

Here are some of the expenses you can expect:

• Attorney fees
• Commissioner fees
• Filing fees
• Renovation costs
• Realtor costs
• Closing expenses
• Mortgages
• Tax liens

Who pays for partition action?

The plaintiff is typically responsible for filing fees, but they may be able to ask the court to award them reimbursement for legal fees and other expenses associated with the property. 

Defendants and plaintiffs alike may be able to recover any payments they made involving the property, including the following: 

• Mortgage payments
• Taxes
• Home insurance costs
• Repair and renovation costs
• Maintenance expenses

The court may decide to deduct money from a co-owner’s share of the proceeds to reimburse the co-owner who made the payments. 

How long does a partition case last?

The duration of a partition case can depend on several factors, such as the complexity of the case, court scheduling, and how long it takes to locate relevant documents. Many partition cases last months or even years.

What are the disadvantages of a partition action?

Settling out of court is always the best course of action, as it avoids the headache of drawn-out legal proceedings. Even if you get the outcome you want, a partition action case can come with some disadvantages: 

• A partition action can be costly
• A partition action can be time-consuming
• If the court orders a partition by sale there is no guarantee that the property will sell for its full market value
• A partition by sale can have a negative impact on economically disadvantaged co-owners
• Potential tax consequences of a partition by sale include having to pay capital gains tax
• A partition action can do lasting damage to the relationship between co-owners