Real estate can be a messy business. Whether it is drawing or redrawing boundaries, placing use restrictions, or arguing over ownership, there are many reasons that an owner or owners may want to divide a piece of real property. This is often done through a partition.
What is a Partition?
A partition is the process of drawing invisible or artificial boundaries through a piece of real property into two or more sections, often for the purpose of subdivision for sale or rent. Nearly all United States jurisdictions require that a partition be done through a written and properly signed real estate ontract. This requirement is known as the Statute of Frauds, and any agreements that do not abide by this law may be void.
A partition can also be forced through legal action. When joint owners (or sometimes tenants in common) of a piece of real property are unable to agree on certain aspects of ownership, they can seek judicial intervention. The court then determines how to divide the property. Another term for a judicial partition is a forced sale.
What are the Common Legal Disputes Involving Property Partitions?
Even with a proper contract, incomplete information or unseen future conflicts can cause problems with a partition. The most common issue is property boundaries. The partitioning parties may disagree as to where the property begins and ends, with the contract providing conflicting information or lacking a property description by failing to name coordinates, metes and bounds, and other measurements.
This description is necessary to provide complete identification of the property so that all ownership rights and duties are fully assigned. Conflicts often arise over exactly where one of these artificial lines/boundaries exists. This type of conflict can usually be solved by a thorough title search.
Another issue that may crop up in a partition include use restrictions. A deed may direct that a piece of property be used for a certain purpose (such as agricultural use or residential housing), or may not be used for certain named purposes. The partition agreement may make no mention of restrictions, leaving confusion as to what rules apply to a piece of partitioned land.
Additionally, interested parties may disagree on who has access to the partitioned property and whether or not they must pay for its use.
What is a Judicial Partition, and What Kinds Exist?
Partition conflicts may be solved through negotiation and contractual agreement between all interested parties, but when this is not possible they must seek a judicial resolution. 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 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 profits divided amongst the owners. This option is normally only used when a physical partition of the land is not possible, or when the economic value of the divided pieces is less in the aggregate than the value of the parcel as a single piece.
What are the Legal Remedies for Property Partition Disputes?
Depending on the case, there are a few legal remedies a court can decide. They may order the partition boundaries redrawn, or order an older boundary reinstituted. If the circumstances make redrawing boundaries impractical, a partition by sale may be the preferred method.
If someone violates a partition, the two options are generally specific performance or monetary compensation. If someone illegally builds something on a piece of property, the court may order them to move it. If the construction cannot be easily moved, they may force the violator to pay the non-violating party damages to remedy the wrong instead of redrawing certain boundaries. Ultimately, the circumstances of each case and the features of each property will determine what remedy is the best one to seek.
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 any negotiations, litigation, or any other legal proceeding. Every state has different laws and every case is different, so finding the right lawyer can make a huge difference in your outcome.