TENANCY IN PARTITION ACTIONS: WHY DOES IT MATTER?

Filing a Partition Action When You are Joint Tenants or Tenants in Common

When multiple parties own a piece of property and they no longer wish to reside together or operate as co-owners, they can either enter into a voluntary agreement to separate the property, or they can petition the court to divide the property by physical division or by sale. Any time two or more individuals own property together, there is some type of “tenancy.” A tenancy is not a rental situation, but instead is the legal method for sharing ownership of property. There are two major types of tenancies, but they differ based on what state the property is located in.

The two general ways that multiple individuals can possess a property is as joint tenants or as tenants in common. Joint tenants own the property with equal shares, regardless of how much each tenant put in toward the acquisition and purchase of the property. For example, if there are two joint tenants, then they will each have a one-half interest in the property. If there are three joint tenants, then they will each have a one-third interest, and so on. Most importantly, in some states, joint tenants have a right of survivorship. In these states, the surviving tenant will take over the other tenant’s interest, and will be the sole owner of the property. Tenants in common, however, can own varied interests in the properties based on how much they contributed to the purchase.

When either type of cotenants no longer wish to reside together or own property together, they will seek a partition, either in kind or by sale. The partition can be voluntary, in which case the cotenants will agree to the division of the property and its terms, or the partition can be court-ordered if one owner files a petition with the court. In either situation, the type of tenancy the parties had is relevant for determining how to divide the physical land or the proceeds from the sale of the property.

 

In joint tenants’ partition actions, the parties will split the property or the proceeds in a manner as even as possible, because they both have an equal interest in the property. However, when tenants in common partition a property, they must take into consideration their respective contributions to the purchase of the property. The division of money or land in a partition action for tenants in common should be kept close to their contributions. For example, if two parties own land as tenants in common, and one party contributed 25% of the purchase price and the other party paid for 75% of the purchase of the home, then when the home is sold in a partition sale, they will divide the proceeds of the sale 25-75.

Both in tenants in common partition actions as well as joint tenant partition actions can be complicated legal procedures. Even if the parties agree as to the disposition of the property, there are still real estate closings, deeds to be drafted, and many other important legal processes that an experienced partitions attorney can handle for you.