PARTITION BY DIVISION

Splitting Up a Property: Partition Division

Property often has more than one owner. The owners can be family members, business partners, or mortgage holders. When the two owners no longer wish to reside together or co-own the property together, they have to partition, or divide, the property between them. There are two major types of partition of property. The first type is a partition by sale, and the second type is partition by division. The usual legal terminology for partition by division is “partition in kind.” This type creates a physical division of the property, leaving each party as the sole owner of their own portion of the property.

Partition by division is the preferred method of property division. This means that courts will usually defer to physical division of the property rather than ordering the property sold. However, that does not necessarily mean that partition by division is the most common result of a partition action. When one or both owners file for partition of the property, the court will divide it unless one of the parties can prove that either physical division is impossible or that it is not in the best interest of all of the parties.

For example, if two parties are left a house in a will, and the parties wish to partition the property, it may be impossible to do so with a residential dwelling. There is no way to cut the house in half. The court can’t draw a line through the living room and kitchen and allow each party to have one side of the line. Although this might be possible, it would certainly be extremely impracticable for the parties.

In the above example, a party could also show that physically dividing a residential house could also be a division that is not in the best interest of all the parties. The purpose of owning a home is to have the use and enjoyment of the house. Building a wall across the living room would render the home useless for any of the parties involved.

As a result, physical partition is usually limited to cases where the land or property would be easily divisible between the parties. For example, if two siblings inherited a large, thirty-acre parcel of land from a parent, it would probably be simple to divide the parcel into two fifteen-acre parcels so that each sibling would have their own large piece of land. It is much easier for a court to order a partition by division when vacant land is involved as opposed to a residential dwelling. This is why partition by division is the preferred method of partition by the courts, but ends up actually only happening in rare situations.

 

The physical division of property can still be complicated. Divisions do not always happen fifty-fifty, and in situations where the property is to be divided equally, the parties can have disagreements about what portion of the property they would like to be granted. Some areas may be more valuable than others within a single parcel. If you need to petition the court for a partition by division of property, you should speak with an experienced real estate attorney.