What is a Partition Action
A partition action is the division of real or personal property between at least two co-owners. These co-owners could be entities such as joint tenants or tenants-in-common. One important note is that co-owners who hold the title as community property cannot use this remedy.
There are three types of partition actions. The first is partition by physical division. The second is partition by sale. The third and final type is partition by appraisal.
Below is a discussion of the three types of partition actions, and general information about partition actions such as the process to file the document and the defenses against this remedy.
What is a Partition by Physical Division
A partition by physical division—also commonly known as a partition in kind—requires that a court divide the property in question by proportional value. This particular type of partition action is most commonly used on rural properties or undeveloped land. However, courts will not usually use this remedy if either owner would receive a portion of the land that is worth substantially less if they would have sold this portion during the sale of the property. Further, before deciding to use this type of partition, the courts must make sure they comply with local zoning ordinances and the subdivision map.
What is a Partition by Sale
A co-owner of a property can force a sale of the land using the partition by sale. Further, unless the opposing property owner has a waiver, a property owner has the absolute right to sell their stake in a property—even if the other co-owner does not want to sell the property. To use this remedy, the courts must find that the sale and division of the proceeds from the sale will be more equitable than a simple division of property. A partition by sale can take place with the help of an agreed upon real estate agent, at public auction, or by private sale.
What is a Partition by Appraisal
This specific partition action allows one or more of the co-owners to purchase the other co-owners stake in the property at a price that is assessed through a court-ordered appraisal. However, this is only available if the interests in the property are undisputed and each party involved in the dispute agrees to the sale.
What is the Process for a Partition Action
To start a partition action, you must file an action in court which names all the parties who have or claim to have an interest in the property. These names can consist of co-owners, lienholders, lenders, and holders of future estates. Once you file this action, and the court approves it, all the named defendants are served. After this, the partition action proceeds like a normal civil lawsuit. The one difference between a partition action and a standard civil lawsuit is that in a partition action, the plaintiff does not have a right to a jury trial. In the end, the judge will give their decision based on the interests of the parties.
Defenses to a Partition Action
In most cases, a partition action is a no-fault proceeding. This means that the defendant cannot bring forth any defenses. The one exception to this is if all the owners have waived their right to partition and a waiver can be verbal, implied, or written.
Costs Involved in a Partition Action
A partition action usually requires one to front the cost of a title report, trail costs, and legal fees. As these fees can vary depending on what state you live in, there is no general amount one must pay to file a partition action. One thing to understand is that if the defendant in the case takes to case to trail, the legal fees will increase substantially.
Common Reasons why People Use Partition Actions
There are three common reasons why someone may use partition actions. The first reason why people commonly use a partition action when only one owner has paid for all the expenses associated with the company. The second reason is when one owner caused damage to the property that lowered the property value. The final reason someone may use a partition action is when and owner claims tenant rights and refuses to deliver possession of property.
With over 20 years of experience, Antonoplos & Associates real estate attorneys have the knowledge and experience required to assist clients with real estate litigation in DC, Maryland, and Virginia. Furthermore, our attorneys have a strong background in real estate, construction law, and business law. Because of this experience, we are can assist clients with most aspects of real estate litigation. Finally, we are able to help you before, during, and after your real estate litigation. This is true whether you need assistance with personal or commercial legal issues.
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Finally, for more information on what is a partition action, contact us at 202-803-5676. You can also directly schedule a consultation with one of our skilled attorneys. Additionally, for general information regarding real estate law, check out our blog.