Massachusetts Partition Law

In Massachusetts, when two parties own a home or piece of land jointly, each of them has a right to seek a partition, or division, of the jointly owned land. A partition can either be a voluntary process, where the two parties work out the terms of the partition with the help of their attorneys, or it can be the result of litigation, where one party files a partition action, which forces the court to hear the action.

There are two main ways to partition land. It can either be partitioned in kind or partitioned by sale. A partition in kind physically divides the land so that each owner now has their own portion of the property that they are the sole owner of. This is extremely difficult to do in residential homes or businesses, so most of these properties are partitioned by sale, where the property is sold at auction and the proceeds are divided between the parties.

In Massachusetts, there are three types of tenancies for individuals to co-own property. They can be joint tenants, tenants in common, or tenants by the entirety. Joint tenants must partition property according to their tenancy, which means that the proceeds or pieces of the land must be divided in equal shares. Tenants in common take land with percentage interests according to their individual contribution to the purchase, and they are required to partition land according to these percentages as well. Tenants by the entirety are only married couples, and when they partition land it is often the part of a larger divorce proceeding within the family courts.

Massachusetts is a title theory state, which means that any lender or mortgage company has title to the property through a deed of trust. This makes a lender a necessary party to partition litigation. However, the bank’s remedy remains in foreclosure, not partition actions.