PARTITION IN KIND

When You Have To Split Up A Parcel in A Partition Action

Parcels of land and buildings very often have more than one owner. Sometimes thes individuals are related to each other, and sometimes they are friends, business partners, or mortgage holders. When they decide that they no longer wish to own the property or they no longer wish to live together, they have to determine how they are going to divide the property between them. There are two main types of partitions. The first type is a partition by sale, and the second type is partition in kind. A partition in kind creates a physical division of the property, leaving each party as the sole owner of their own portion of the property.

Partition in kind is the default method of property partition. Courts will attempt to physically divide the property instead of forcing a sale. However, partition in kind is not the most common type of partition, even though it is the type of partition that courts prefer. When one or both owners file for partition of the property, the court will order a partition in kind 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 own a building as business partners, and the parties wish to partition the property, one of the parties may be able to show that dividing the building in half will not work. It doesn’t make sense to cut a store or office building in half. Although this might be possible, it would certainly be extremely impracticable, and the court will usually refrain from doing so.

In the above example, a party could also show that physically splitting up the business could also be a division that is not in the best interest of all the parties. If the business building is a retail establishment with customers, putting up a wall in the middle of the aisle will not be a good solution for anyone.

As a result, a partition in kind is usually limited to cases where the land or property is easily divisible. For example, if two a husband and wife own a large parcel of land together, and then they get divorced, it would probably be simple to divide the parcel into two halves and allow each spouse to own half and dispose of it as they wish.

 

Even though it seems simple, a partition in kind can still be very 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 feel they are entitled to. Some areas may be more valuable than others within a single parcel, and some areas could be deemed useless if they have an unsavory condition on them, such as rock that is unsuitable for building a home. If you need to petition the court for a partition in kind, you should speak with an experienced real estate attorney first.