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Real Property is often owned by more than one person. Joint ownership can occur as a result of a joint purchase of real property or as a result of inheritance. In both cases, the joint owner has an undivided interest which means that although the joint owner owns a one- half interest in the property, they cannot point to the specific portion of the property that they own.

Often, issues arise between joint owners of property over how to use the property, who pays the taxes, who pays for repairs or a new roof on the property, or whether to sell the property. When the property owners cannot agree, a joint owner has the right to initiate a Partition proceeding.

A Partition proceeding is a lawsuit filed by a joint tenant or tenant in common owner of property to force the division or sale of real property. Partition actions start with a petition and are Special Proceedings brought before the Clerk of Court. A Partition action must be instituted in the County where the land lies. There are two types of Partition proceedings, Partition in kind and Partition by sale.

Partition action in kind is possible only when the property can be physically divided in a manner that each joint owner receives their share. For example, one hundred acres could be physically divided to allow for two joint tenants each owning a fifty percent interest to receive fifty acres. Of course, who has road frontage, access and the condition of the land must be considered as well. In Partition in kind proceedings, the Clerk of Court appoints three  commissioners to oversee the division of the property. The law says Courts favor Partition in kind rather than Partition by sale.

Partition by sale occurs when the property is unable to be physically divided or cannot be divided equally. For example, a single one-half acre lot with a house constructed in the middle of the lot cannot be divided in a manner that would allow each joint owner to receive their interest. In Partition by sale proceedings, the Clerk of Court appoints a Commissioner to oversee the sale of the property. The proceeds of the sale are deposited with the Clerk of  Court. A hearing is held before the Clerk of Court to divide the proceeds.

Partition proceedings are the law’s answer when joint property owners cannot agree. Disagreements regarding the sale, use, or costs of property may be resolved by retaining an attorney to initiate a Partition proceeding or to work out an agreement between joint owners.

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