THE PARTITION PROCEDURE

The Process and Forms To File A Partition Action

The procedure for partition of real property varies greatly depending on the state that the property is located in and the means and type of partition that is being sought. Partitions come in two general forms: voluntary partitions and judicial partitions. Among these two types of partitions, there are several means of splitting property: partition in kind and partition by sale. How the proceeds or land is divided will then depend on the type of tenancy that the parties originally entered into.

If the partition is voluntary, meaning that both parties agree to divide the property, then the partition procedure will be for them to negotiate or mediate the division of the property so that they can enter into a contract which will provide for the partition. This contract will lay out the means for property division as well as the method for splitting the proceeds or land. In voluntary partition actions, the partition procedure is generally for each party to retain their own counsel, to ensure that their interests are both represented and that the resulting contract is a fair document that divides the property between the two owners in a just manner. Once the division of the property has been agreed upon, the parties then execute the land transfer or the sale. A sale will generally have to be carried out by a neutral third party, and some states require court oversight into a partition action auction. Once the property has been sold or divided, all deeds must be properly executed and recorded and all monies disbursed.

If the parties do not agree on dividing the property, then the partition procedure will take on a different form. In these cases, sometimes called judicial partition, the division of the property is ordered by a court of law. In property disputes, any co-owner has an absolute right to bring forth a partition action. When they wish to do so, they must first file a petition for partition. The forms for the petition vary depending on the state, and they must be filed with different courts in each state. Some states have land courts or other designated courts, and in other states any court can hear a partition action.

 

Once the petition is filed, the petitioner has a right to a partition by the court. The other party may produce evidence to suggest that the petitioner does not have a right to partition, but these exceptions only exist in limited circumstances. The court will then determine whether a partition in kind or a partition by sale is appropriate in the situation. The parties are allowed to bring forth evidence for or against each type of partition, and the judge will rule which kind is favorable based on the partition procedure rules of the jurisdiction. Once that decision has been made, the judge will order the partition, either by division or by sale by a neutral third party at auction.