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Partition (law): Wikis

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From Wikipedia, the free encyclopedia

A partition is a term used in the law of real property to describe an act, by a court order or otherwise, to divide up a concurrent estate into separate portions representing the proportionate interests of the tenants. Under the common law, any tenant who owns an undivided concurrent interest in land can seek such a division. In some cases, the parties agree to a specific division of the land; if they are unable to do so, the court will determine an appropriate division. A sole owner, or several owners, of a piece of land may partition its/their land by entering a Deed poll (sometimes referred to as "carving out").

There are three kinds of partition which can be awarded by court: partition in kind, partition by allotment, and partition by sale. A partition in kind is a division of the property itself among the co-owners. In a partition by allotment, which is not available in all jurisdictions, the court awards full ownership of the land to a single owner or subset of owners, and orders them to pay the person or persons divested of ownership for the interest awarded. Partition by sale constitutes a forced sale of the land, followed by division of the profits thus realized among the tenants. Generally, the court is supposed to order a partition sale only if the land cannot be physically divided, although this determination often rests on whether the economic value of the divided pieces is less in the aggregate than the value of the parcel as a single piece. See Delfino v. Valencias, 436 A.2d 27 (Conn. 1980).

A provision in a deed completely prohibiting partition will not be given effect, but courts will enforce a provision that temporarily restricts partition, as long as the restriction is reasonable.

Contents

Statutory variations

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Ontario, Canada Code

The Ontario Partition Act, R.S.O. 1990, c. P.4, states:

"3. (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested. R.S.O. 1990, c. P.4, s. 3 (1)."

Florida Code

Florida provides for partition actions by statute, which basically provides that any co-owner of real estate may seek partition.[1] In Florida, there are basically no defenses to a partition action, other than if the parties have agreed not to partition the real estate.[2]

Pennsylvania Code

-- Property divided under Rule 1560(a) shall be awarded to the parties according to their respective interests.

-- A master who is appointed by the court shall make such examinations and hold such hearings as may be necessary, giving reasonable notice thereof. The master may employ appraisers and, with the authorization of the court, such other experts as are necessary to enable the master to perform his or her duties.[3]

-- The court shall permit the shares of any two or more co-tenants to remain undivided between them if they so elect by writing filed within such time as the court or master shall direct.

-- Parties defendant owning a majority in value of the property may object in writing to any sale, requesting that the property be awarded to them at its valuation fixed by the court and that their interests in the same remain undivided. Upon such request the entire property shall be awarded to the parties objecting to sale, as tenants in common, subject to payment to the parties desiring partition and sale of the amounts of their respective interests based upon the valuation. The amounts due the parties shall be charged as liens upon the property, to be paid in such manner and time as the court shall direct.

Partition Procedure

A party seeking a partition must file a partition lawsuit. If the property cannot be split apart and allocated to give each tenant a portion without spoiling the whole, the court will proceed with state law in arranging a sale of the property. A court master commonly is assigned to carry forward the partition action.

Tenants in Common Partitions vs. Tenants with Rights of Survivorship Partitions

Tenants in Common (TIC) deeds may or may not be taken in equal shares, but a Joint Tenants with Rights of Survivorship (JTWROS) deed must always be taken in equal shares. Therefore, a partition action for those two types of deeds will vary.

When a JTWROS property is partitioned, the proceeds must be divided equally among tenants without regard to contribution to purchase price since a JTWROS deed is always taken in equal shares. Otherwise, the premise of a JTWROS deed would be invalid and its purpose would be defeated.

On the other hand, when a TIC property is partitioned, courts may be at liberty to consider unequal contributions to purchase price and adjust the tenants' distributions accordingly. In either partition situation, tenants may request credits for unequal contributions to expenses incurred after taking deed to the property. Such credits may cover utility and maintenance expenses. Credits for improvements to the property may be granted if the improvements actually increased the value of the property.

References


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