It’s common for family members or investment partners to come upon times where they can’t agree upon proper use or management of real property. In situations where there is no possibility for resolution, it may be appropriate to consider a partition action. Filing a partition action enables a process where a Court can equitably divide ownership interests in real property. There are two kinds of partition actions: a partition in kind, and a partition by sale.
A partition in kind is the process by which the Court will actually divide the property in to new and distinct segments of land. A partition in kind is only possible when the property can be physically divided; each owner will eventually own exclusive title to a portion of the previous estate. This process is accomplished through the appointment of a Commissioner, who will take an oath to fairly and impartially divide the property in accordance with the owners’ individual interests. The Commissioner will then submit the proposed division of property to the Court for approval.
If the Commissioner is unable to apportion and divide the real property, as is the case with most residential property, then the Court will order a partition by sale. In many cases, after establishing the fair market value of the property, the parties can reach a settlement agreement as to listing the property for sale and equitably dividing net proceeds. In other cases, the Court will order that the property be sold at a public sale.
After completing a Court ordered sale, the Court will equitably divide proceeds of the sale amongst the various owners. When distributing net proceeds, the Court will consider financial contributions from each owner toward the purchase and upkeep of the property. Each owner will eventually receive a percentage of proceeds that equates with his or her equitable interest in the property.
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At the conclusion of a partition action, the Court will decide every issue and controversy concerning the property. Therefore, each owner can move forward with final resolution of the land dispute. If you are in a dispute with co-owners of real property, contact an attorney at Jorgensen, Brownell, & Pepin. Our real estate attorneys can help you determine whether a partition action is appropriate for your unique situation.