Partition, in real property law, is the division of an existing estate, with or without a court order, into appropriate portions that correspond to the specific interests of the property owners. On occasion referred to as forced sale, common law dictates that any one of several owners of an estate or property can call for a partition to be carried out. Ideally, all parties involved in ownership of the property will reach a mutual agreement concerning the proportions of division; if the parties fail to agree on an appropriate division, the court will determine this division for them. A sole owner or multiple owners of an estate or real property can opt for a division of their land by drawing up a deed poll, this act is often described as ‘carving out’.
Reasons for Partition / Forced Sales
Forced sales often take place when owners of an estate or real property disagree on aspects of ownership or have different visions for the property they own. This could include disagreements pertaining to the use of the property, planned investments, or the right to occupy all or part of the property. If the owners are unable to reach an agreement on their own, a petition for partition is submitted to the court. The US has seen increasing co-habitations in recent years, and an increased number of petitions to partition as result of this. Petition to partition actions have become a popular course of action to carry out divisions in personal and real property.
In case of joint ownership of a property, there are different types of tenancies that can be opted for, like joint tenancy, tenancy in common, or tenancy by entirety in some states; this decision is made at the time of purchase. Regardless of the type of tenancy that has been opted for, all owners of the property possess the right to occupy the property as a whole. This means that no individual owner can single out or appoint rooms for themselves and all aspects of the property are open for use by every owner.
Different Kinds of Partition
A court will generally award one of three types of partitions. These are:
- Partition in kind: The default approach to partition, this is when the property in question is divided among all its owners based on the level of interest they hold in the property.
- Partition by allotment: Only available in some jurisdictions, this is when ownership of the property is awarded to a sole owner or a group of owners, who are then ordered to compensate the parties the ownership has been taken from for the interest they held.
- Partition by sale: In case it isn’t possible to physically divide the property, the court orders a forced sale to be carried out. The profits from the sale are then distributed among the parties involved.
In joint ownership, it isn’t possible to entirely prohibit partition, even if the deed of the property has provisions to prohibit it. In such instances, however, the court can call for a temporary restriction on partition, provided that the restriction isn’t unreasonable.