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WHAT IS A PARTITION ACTION?

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An action for partition is often necessary when more than one person owns a piece of property. Sometimes, when there are multiple owners, those owners no longer wish to reside together or to co-own the property. This can happen either because the property owners purchased the property together and now wish to go their separate ways, or because the property was left to more than one party in a will and the parties do not wish to co-own together.

Regardless of the cause, when two (or more) parties own something and they wish to separate it, they need to file an action to partition. The definition for an action for partition is the separation of jointly owned property, either by division or sale. There are two major types of partition actions. The first type is a partition in kind. This type of action of partition is also known as a partition by division, because what it does is partition the house or land by dividing it between the parties. This means that there will be a physical boundary that separates each party’s land. They will no longer co-own the property, but instead will each own a portion in their own name.

The second common type of equitable action for partition is a partition by sale. When a house partition in kind would not make sense, then the parties still have a right to partition by sale. The property would be sold to a third party and the proceeds from the sale would be divided between the two owners. A partition sale is a common type of partition action in residential properties, because it would be difficult to divide a residential home for multiple owners to reside within it.

How to Complete a Property Partition

When you want to have a partition action to sell your property or divide your property, the first step should be consulting a knowledgeable partition action attorney. Filing a partition action can be extremely complicated, whether the partition is voluntary or court-ordered. Voluntary partitions occur when the co-owners agree that they no longer wish to own the property together, and they work out an agreement which allows them to either divide the property or file an action for partition and sale.

Even if your partition is voluntary, it is still important to find an attorney to assist you, because you want to make sure that your rights are being protected and that your transaction goes smoothly. If the partition is not voluntary, you may need to seek a court order to force the division of the property. This can be a long, drawn-out process if you do not have an experienced real estate attorney to help you.


Splitting Up Proceeds from a Partition Sale


When two parties finally partition the property, the court must determine how the proceeds or the land will be split. Generally, the land is divided according to the type of tenancy that the parties had before they no longer wanted to be co-owners. There are two main types of tenancy in the United States. The first type is a tenancy in common. A tenancy in common allows the parties to have any percentage of interest in the property according to the amount that they contributed to the purchase or according to a contractual agreement governing the land. The second type is a joint tenancy, where both parties have an equal interest in the property, and sometimes have rights of survivorship. When the property is partitioned, the proceeds must be divided according to the tenancy: in a joint tenancy the property must be divided equally, and in a tenancy in common it is divided according to the percentage of interest each party had.

In addition to voluntary partitions and court-ordered partitions, there can be many other types of situations with multiple co-owners of the property. In some states, the mortgage holder has an interest in the property along with the co-owners. This can mean that in order to divide the property, the owners may have to seek a Medicaid limited partnership interest partition action or a foreclosure partition action, if Medicaid or a bank is involved in the transaction.

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