It is not uncommon that two or more people will choose to be joint owners of real property and then somewhere along the line for some reason at least one owner seeks action to partition the property. Whether the joint owners are in dispute, or one party simply wants to cash out on the property, a partition is needed to make sure the property is divided fairly. This article walks you through different types of partition and their respective processes.

What is a Partition

A ,real property partition in general is similar to a divorce action in which property is split between joint owners of property, except a partition is related only to real property and no personal property. A real property partition requires court action to determine each parties’ interest and contribution to the property, both at the time the property was purchased, and the contributions made throughout the ownership.

A court determines the amount of each parties’ interest in the land and divides it equitably amongst them. It’s important to know the difference between the meanings of equitably and equally. Equally would simply mean the property is split 50/50, which arises only when the property is in joint ownership. An equitable division is based on the parties’ respective contributions and that is used to portion out the land’s value, which varies with each partition action. Primary aspects considered include who paid what to purchase the land, who paid for improvements, who paid for taxes, and who paid for general maintenance of the property.

Partition in Kind

A partition in kind is the classic example of a partition. Imagine two siblings sharing a bedroom with a line of tape creating a border in the middle of the room. That is essentially what a partition in kind does. This form of partition is a physical division of the property, giving each owner their own portion that is proportional to their contribution to the land. While it seems simple, a partition in kind is not always practical. If the property in dispute is a large piece of land, it may be easier to divide it and leave each owner with their share. But, if the property includes a home, a building, or other structure, it would not make much sense to use a partition in kind as a solution. Thus, there is a second option by which a property shared by multiple owners can be partitioned.

Partition by Sale

As revealed by the name, this form of partition results in at least one party wishing to sell their interest in the land. If the land is owned through joint tenancy, then the partition action separates joint tenancy into tenancy in common. This division involved the calculation of each parties’ respective interest as described above. Once the property’s interest is divided equitably, the owner wishing to sell can only sell his share of the property and receive whatever funds he can for it. If the other party or parties do not wish to sell their share, they then hold the entire land in common with the new owner. The other owner can also opt to buy the land and become the sole owner.

If there is a property dispute over the use of the land, sometimes a partition by sale will simply be the sale of the entire property, and the proceeds are divided equitably amongst the owners. A partition by sale is most common in New York because if there is a building on the property, it would be difficult to divide the structure and have disputing owners each stay on it and get along.

Whether the idea to partition the land arises from a dispute, or it is a mutual decision, it is important for the parties to have real estate lawyers help them reach an agreement to the division of the property. Real Estate attorneys will ensure their clients are receiving their fair share of the property according to their respective contributions.