Partitioning real property (as opposed to personal, financial or intellectual property) is a fairly common process that occurs when a piece of real estate, such as a building, an estate or a parcel of land, has multiple owners who no longer wish to have co-ownership. The property then has to be divided.
Often, not all of the co-owners are in agreement about what to do with the real estate. You may want to start a business in the building, build on the property or even sell it, while your co-owner does not. Usually, a property has multiple owners because it was inherited or because spouses purchased it together, so disputes like this are common. If the co-owner will not voluntarily divide the property, you have the option of bringing a partition action.
There are two types of partitions. A “partition in kind,” or “actual partition,” separates each owner’s individual interests in the property, essentially dividing it into distinct portions, with each controlled only by one owner.
If a partition in kind is too difficult to carry out, the property may instead undergo a “partition by sale,” otherwise known as a partition by succession or licitation. In this case, the whole property is sold and its proceeds are divided among the owners.
The right to partition
Your right to partition is considered an absolute right, one that can only be limited by a provision in a will, a written waiver or the law. Even if you’ve been in a co-ownership for years, you can exercise your right to partition at any time. Courts are generally in favor of partitions and grant them willingly.
There are some situations in which you can take certain measures to avoid partition actions for a period of time. If the co-tenant agrees not to partition, particularly in writing, they may be prevented from invoking the right to partition temporarily. And if the co-tenant signed a non-partition agreement when obtaining the title to the property, that person will be held to those terms. However, a court usually will not enforce an agreement that permanently prevents the right to partition or that prevents it for an amount of time deemed to be unreasonable.
Partition acts are generally very complicated and require the involvement of the court to settle for a solution in the co-owners’ best interests. If you’re dealing with this issues, consult a skilled real estate attorney.
BoltNagi is a widely respected and well-established real estate law firm serving businesses and investors throughout the U.S. Virgin Islands.