Partition Law:
How to Get a Partition

Property Partition Law to Divide Land or Buildings Through Division or Sale

When there are multiple owners of a piece of property, and they no longer wish to co-own the land or building, they have a right to seek a partition, or division, of the property. Partition law varies based on the jurisdiction. The state in which the land is located will usually have its own partition law that applies. Partition property law generally concerns two separate types of partition, and then the property is divisible based on the different types of tenancies in the jurisdiction.

The two major means of dividing property under the law of partition of property are partitions in kind and partitions by sale. Partition law requires that most courts seek to first divide the property in a partition in kind. A partition in kind is a physical division of the property by delineating borders. Instead of the two parties jointly owning the entire property, a court will divide the property so that each party is the sole owner of their own portion of the property.

However, partitions in kind only work for certain types of property, like large pieces of land. If it would be difficult to divide the property this way, then the court can order a sale of the property so that the co-owners can divide the proceeds. This is called a partition by sale. Different states have different partition rules and laws, so each jurisdiction has different requirements for a partition by sale or a partition in kind.

The law of partition is also affected by the type of tenancy that the parties had before they sought a partition. A property law partition will depend greatly on which type of tenancy the co-owners had: a tenancy in common or a tenancy at will. In some states, there is a third option, a tenancy by the entirety, which is only available to married couples. A tenancy in common allows for the parties to have varying interests in the property based on their contribution or their contractual agreement. A joint tenancy requires equal ownership in the property and sometimes has rights of survivorship.

In a joint tenancy with equal ownership, laws for partition of property usually require that the property is partitioned equally between the owners. This could mean that the land is divided equally, or that the proceeds from the sale are. However, if the parties owned the property as tenants in common, then the partition should be split according to their percentage of contributions toward the original purchase of the property or to their contractually determined interests in the property.

As you can see, partition law varies greatly from one jurisdiction to the next. Partitions in kind and by sale have different thresholds of evidence in different states, in addition to the fact that tenancies and their characteristics vary greatly throughout the country. If you need to seek a partition, you should consult an attorney in your state to determine your property rights.

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