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What Is a Partition Action?

What Is a Partition Action? (Transcript)

Joseph M. Murphy, Real Estate and Civil Litigation Attorney

 

A partition action is a lawsuit which was formed in statute, basically for joint owners of property who have come into a dispute regarding either the ownership, use or payment of that property. Generally a partition action will become necessary because you have joint owners and you either have one party exclusively residing in the property to the detriment of the other owner, or you have one party paying for expenses beyond their pro rata share. Joint ownership, assuming you own the property equally, you should have equally shared those expenses. And a lot of times, unfortunately, that does not happen.

When those owners cannot come to an amicable resolution regarding those disputes and there is no other opportunities for those owners to reach a resolution, the partition process may be instituted by any of those owners and it can actually force a sale. And the court can do that either via a public auction or a private sale through the use of a special magistrate.

In addition to a partition sale via a court order, they can also, and will also, award credits and debits to the respective parties. So for instance, if I own a property with another individual and we have title 50/50, we should be sharing both the cost for the purchase of that property, the cost to maintain that property, and annual costs such as mortgage payments, interest, property taxes, homeowners association assessments, and things of that nature. We should be sharing those equally.

However, a lot of these disputes that do arise between joint owners is because one party may not be doing that, may not be sharing those expenses equally and the court actually can take into account the evidence and award one party a greater share of the sales proceeds because of the credits they obtain and the amounts that they paid in advance.

There are methods to resolving a partition action situation without a court order of sale. And in fact, about 95% of the partition related matters that we handle either settled pre-lawsuit or shortly into the litigation matter. Generally, because there is a little that either owner can do to stop that process once it's begun and because attorneys' fees are awardable through that action, most of the times when we get into these types of lawsuits, the parties quickly realize that isn't everyone's best interest to resolve it amicably, and either that is a sale from one party to the other or a joint sale to a third party. That generally is in the best interest of all parties and helps maximize their profits.

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