Real estate can be a dirty business. Whether it is drawing or redrawing boundaries, placing use restrictions, or squabbling over ownership, there are many reasons an owner or owners may want to split a piece of real property. This is often done through a partition.
Property Partition Disputes
What Is a Partition?
A partition is a process of drawing invisible or artificial boundaries through a piece of real property into two or more divisions, often for subdivision for sale or rent. Nearly all United States jurisdictions demand that a partition be done through a written and properly signed real estate contract. This provision is known as the Statute of Frauds. Any contracts that do not abide by this law may be nullified.
A partition can also be compelled through legal action. When joint owners (or tenants in common) of a piece of real property cannot compromise on specific aspects of ownership, they can seek judicial intervention. The court then decides how to split the property. Another phrase for a judicial partition is a forced sale.
What Are the Standard Legal Conflicts Involving Property Partitions?
Even with a valid agreement, incomplete details or unseen future disputes can cause partition trouble. The most typical problem is property boundaries. The partitioning parties may clash on where the property begins and ends. The contract supplies contradicting information or lacks a property description by failing to name coordinates, meters and boundaries, and other measurements.
This depiction is required to provide total property identification so all ownership rights and responsibilities are fully appointed. Disputes often emerge over where one of these artificial lines/boundaries exist. A thorough title search can usually solve this type of conflict.
Another problem that may crop up in a partition includes use restrictions. A deed may direct that a piece of property be used for a particular purpose (such as agricultural use or residential housing) or may not be used for specific named purposes. The partition agreement may make no mention of constraints, leaving puzzlement about what regulations apply to a piece of partitioned land.
Additionally, interested parties may clash on who has admission to the partitioned property and whether or not they must pay for its use.
Types of Partitions for Real Estate Disputes
To ensure equilibrium is maintained between the parties that have brought the controversy, a partition action is often how the courts resolve these matters. There are two primary forms of partitions within this principle involving land ownership. These are actual partition and partition by licitation or succession. The actual partition cuts the specific interest when it is jointly owned. This then delivers individual portions of the property to each person smaller than the total previously owned together.
This is the most straightforward form of partition and the most commonly used action taken. While the parties may not be pleased with a smaller portion, they may be amenable to a resolution.
A licitation partition or a partition by sale is when the property is sold fully, providing the parties involved with the proceeds. Though this may be an extreme move, it is taken when the actual partition is challenging to satisfy or when the involved parties cannot settle on an outcome. This may be performed more often when a small building or similar items cannot be split equally. This means selling the lot is the better resolution for all involved individuals. This leads each to collect the proceeds and then purchase land or property as they see fit.
Intentional Partition and Jurisdictional Partition
Many examples of partition actions are intended or uncoerced for all parties involved. This means the estate co-owners have agreed to the partition so that the property may be divided among them. If not everyone consents, one of the landowners can file a suit with the courts, so a partition is compelled. While this could be problematic when no arrangement has been made by all persons owning the land, it is better to deal and compromise in this manner than be compelled or forced by the courts to submit to judgment.
A court-ordered petition usually is performed through non-negotiation between the parties. A resolution must be made, and only the courts can conclude these processes. Various factors such as the rights, titles, and interests of the individuals affected are considered for the determination. These actions may be opposed, but a lawyer is needed to file for statutes of limitations, delays, and public policy issues.
Mediation and Lawyer Involvement with Partition Actions
When disagreements arise with co-owners of property in moving forward with a plan of action, how to use property on land, what ways to divide or sell the parcel, and which pieces should be affected, partition actions may be the better route to take. However, it is possible to mediate a decision using a lawyer to provide guidance. This is when both parties are amenable to a solution that both may be satisfied with through settlement.
If, however, mediation cannot be achieved, it is best to get a lawyer for litigation or partition actions. The legal representative may ensure all rights and factors are considered for the case. This means the client’s interests are paramount and applied to the claim on the property.
What Is a Judicial Partition, and What Kinds Exist?
Partition disputes may be solved through negotiation and contractual arrangements between all interested parties, but they must seek a judicial resolution when this is not feasible.
There are three types of partitions that a court may order:
- Partition in Kind: This solution is when the property itself is divided amongst multiple owners, with the court determining who gets which piece through a court order. This is the default method for most states regarding judicial partition.
- Partition by Allotment: When the court awards full ownership of the property to one owner or a subset of owners and then orders those owner/s to pay the divested parties a certain amount of money for their interest in the property. This option is not available in all states, so be sure to talk to a lawyer.
- Partition by Sale: When the court orders the sale of the land, with the proceeds split amongst the owners. This option usually is only used when a physical partition of the land is not feasible or when the economic value of the divided pieces is less in the entirety than the value of the parcel as a single piece.
What are the Legal Remedies for Property Partition Disputes?
Depending on the case, a court can decide a few legal remedies. They may order the partition boundaries redrawn, or an older boundary reinstituted.
Do I Need an Attorney for Property Partition Disputes?
Real estate matters can be complicated legal affairs and can very easily overwhelm even the most informed property owners. If you find yourself in a property partition dispute, you need to seek the expertise of a real estate attorney in your state/local area.
They can advise you of your rights and represent you in negotiations, litigation, or other legal proceedings. Every state has different laws, and every case is different, so finding the right lawyer can make a huge difference in your outcome.
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