What is a partition action?
Partition refers to the division of ownership interests in real property by the court. When two parties own one piece of property, they both hold an undivided interest in the property. This means that they both have the right to use, reside in, rent, or receive profits from the property. When the two parties can not agree on how to utilize the property, the parties may need to request that the court partition the property.
What costs are involved in a partition action?
Generally speaking, each party will incur legal fees for hiring an attorney to handle the legal proceedings. Additionally, there are court costs and fees related to the filing of the action. There will also be expenses paid to the person who is responsible for selling the property pursuant to an order from the court. Finally, the most often overlooked cost is the potential loss of value in the property. This is because if a property is sold as part of a partition action, the owners will likely not receive the entire value of the property from the sale. Therefore, it is almost always better for the parties to agree to sell the property prior to the filing of a partition action.
Will a property always be sold in a partition action?
No. If the property is such that it can be divided up by the court — e.g., large farm land — the court may elect to divide the property between the owners instead of ordering the sale of the property. Additionally, the parties will likely be required to participate in mediation where the parties may agree on an alternate resolution for dividing the interests in the property.
Who can file a partition action?
Any owner of an interest in real property has the right to file a partition action, and that person does not need permission from the other owner(s) prior to filing the action. With that being said, it is generally advisable for the parties to discuss a possible resolution prior to engaging the legal process. This is because the parties will save a significant amount of money if they can come to a resolution that does not involve a decision from a judge.