Tenancy in common is a shared ownership of property between two or more individuals. Each of the tenants hold an undivided interest in the property.
With a tenancy in common, there is no right of survivorship. Therefore, the undivided interest of one tenant may be passed on to their heirs.
What Are Tenants in Common?
Tenants in common share the joint possession of real property. This is the most common type of joint property possession.
A tenancy in common is a form of real estate title where more than one person possesses a share of a property. It is the most favored form of joint possession. As noted above, tenancy in common is formed when the tenants in common have unity of possession.
This means that the tenants in common share the property together. Although the shares of the tenants may not be equal, each tenant in common is entitled to use or possess the entire parcel of land.
All of the tenants in common are not required to take possession of the property at the same time. In contrast to a joint tenancy, there is no right of survivorship in a tenancy in common.
Most jurisdictions will presume that property held by more than one individual is a tenancy in common arrangement. Most courts presume that a devise to two or more individuals who are not married creates a tenant in common.
An individual’s interest in a tenancy in common may be transferred at any time during the tenant’s life. The interest may also be devised after their death.
What Is a Partition of Property?
The real estate business can be messy. It may be necessary to redraw boundaries, place use restrictions, or determine ownership.
There are numerous reasons why individuals may want to divide a piece of property. This is often accomplished by a partition.
A partition draws artificial or invisible boundaries through a piece of real property into two or more sections, typically for the purpose of subdividing the property for sale or rent. Almost all jurisdictions in the United States require that a partition be done through a written and properly signed real estate contract.
Under the Statute of Frauds, real estate contracts must be in writing. Any agreements that do not abide by this requirement may be void.
Partitions may also be forced by legal action. This type of partition is a forced division of a piece of land among individuals who were formerly co-owners.
In some cases, joint owners or tenants in common of a piece of real property are not able to agree on certain aspects of ownership and seek judicial intervention. A partition lawsuit may request that the land be divided and if that is not practical, selling the land and dividing the proceeds.
The court will then determine how the property should be divided. A judicial partition may also be known as a forced sale.
A partition lawyer can help individuals who are joint owners or tenants in common if they have a dispute with the other co-owners and need to divide the property.
What Are Some Common Legal Disputes Involving Property Partitions?
Even when there is a proper contract in place, incomplete information or unanticipated future conflicts may cause issues with a partition. The most common issue in these cases is property boundaries.
The parties involved in the partition may disagree regarding where the property begins or ends, with the contract providing conflicting information or lacking a property description by failing to name:
- Metes and bounds; and
- Other measurements.
This information is necessary to provide a complete identification of the property so that all ownership rights and duties are fully assigned. It is common for conflicts to arise regarding exactly where these artificial lines and boundaries exist.
This type of conflict may be resolved using a title search. Another common issue that may arise in a partition is use restrictions.
A property deed may provide that the piece of property is to be used for a certain purpose, such as agricultural use or residential housing, or that it may not be used for certain named purposes. In some cases, a partition agreement may not mention restrictions, which results in confusion regarding what rules will apply to a piece of partitioned land.
In addition, the interested parties may disagree regarding who has access to the partitioned property as well as whether or not they must pay for its use.
Can a Tenant in Common Sell His Share of the Property?
Tenants in common, as noted above, have undivided interest in their share of the property. Therefore, if one of the other tenants does not want the property to be divided, the court would likely order a forced sale of the property.
The property would most likely be divided according to the contribution each tenant in common made to the property.
What Steps Can Potential Tenants in Common Do in Order to Avoid Controversy?
Tenants in common often run into issues in division of property because of ambiguity. Tenants in common should do the following:
- Be clear that both of the potential tenants intend to hold the property as tenants in common;
- Hire an attorney to put these negotiations in writing so that it avoids confusion; and
- Keep records of property purchased together in case division becomes necessary.
A partition attorney can help tenants in common complete all of these tasks and reduce the risk of conflicts arising in the future.
What Are the Legal Remedies for Property Partition Disputes?
Defending on the facts of a case, there are several legal remedies a court may use to resolve a property partition dispute. The court may order that the partition boundaries be redrawn or an older boundary be reinstated.
If the circumstances of the case it impractical to redraw the boundaries of the property, a partition by sale may be the preferred resolution. If one of the parties violates a partition, the two options are, in general, specific performance or monetary compensation.
Specific performance would arise, for example, if one party illegally builds something on a piece of property. In that case, the court may order the party to move or remove it. If the structure cannot be moved easily, the court may order the violating party to pay the non-violating party monetary damages to remedy the wrong instead of redrawing certain boundaries.
Ultimately, the facts of each case and the features of each individual piece of property will determine what remedy is best.
Should I Consult a Lawyer if I Want to Partition Property?
Real estate issues can be complex legal affairs and may very easily overwhelm even an informed property owner. If you are involved in a property partition dispute or request, it is important to have the assistance of a property lawyer.
Your lawyer can help you understand your rights as a tenant in common and help you determine how to best divide the property. In addition, your lawyer can assist you during any negotiations, litigation, or any other type of legal proceeding.
Because decisions regarding property partition disputes may be decided by the court, it is important to have an attorney who can peasant the best case for your desired outcome for your property.