Joint ownership of a single property in real estate is quite common, either by two investors or multiple investors. There are multiple reasons that lead individuals to share investment in property ownership due to sharing common interests. The sale of such property requires all the parties involved to agree on the pricing, timing, distribution of the property's equitable interest, and others. However, sometimes, the parties fail to agree when some of them want to sell while others do not agree with the decision. In this case, the disagreement calls for a partition action to help the co-owners divide the equitable interest from the real estate property. This post will explore all the useful information there is to understand and know about partition action.
What is a Partition Action?
Co-owners of a joint investment may fail to agree on the distribution and management of a property, attracting the court's attention to help them divide the equitable interest. The court takes upon the decision to break the initial joint ownership of the co-owners of those who want to sell their real estate's property equity and those who do not. A resolution becomes challenging to come to when the co-owners start disputing over management issues. But you may want to ask yourself what is a partition action in case of a failed resolution. When the co-owners fail to agree, that is when they seek outside help most probably from the court, for a partition action. The co-owners in favor of selling present a civil lawsuit against the ones who do not want to sell. The judge then listens to both sides presenting information and makes a final decision based on the various types of partition action available. The judge may rule over the forceful sale of the real estate property.
Types of Real Estate Partitions
Partition in Kind
When co-owners of a joint investment property or land, the partition-in-kind lawsuit ensures the property or land is divided equally so that each owner gets a fair share of the investment. When the property is divided, this gives each co-owner the mandate to decide what they would want to do with their share. However, physically splitting real estate property can be challenging; that's why the following type of partition may be a viable solution.
Partition by Sale
Physically splitting a real estate property is one of the most challenging processes for co-owners. Therefore, the court is mandated to forcefully sell the property to resolve the disagreements. After the property is sold, the proceeds are then divided among the co-owners for their equitable interest. Under this partition, the sale of the real estate property must be completed despite the protests from the other parties.
Partition by Appraisal
Under partition by appraisal, some of the property may decide to retain the property and buy the shares from the parties in favor of the sale. Therefore, the property does not go to a third party but rather remains with some of the initial owners. This decision happens outside the court; if it leads to an agreement, the parties, therefore, request a court partition by appraisal. The value given to the other party must be equal compared to the value in which the property could have been sold.
Types of Joint Ownership that can Result to Partition Action
One approach to owning real estate property is through joint ownership that occurs for reasons well known to the co-owners, such as financial boost, spouse, inheritors, business partners, and others. Joint ownership could have many benefits due to the cost-sharing of many property improvements or other payments that may be required. However, it is the only form of ownership that attracts a partition lawsuit. There are three types of joint ownership in real estate property that could guide the partition lawsuit's decision.
Joint Tenancy
In joint tenancy, each party owning the property has equal rights and obligations to the property. The co-owners can use and enjoy the property as they are co-owners. All the parties ought to agree on any decisions made for the betterment of the property. This mode of ownership accommodates survivorship rights. This takes its shape when the surviving party after the initial co-owner dies, may inherit the rights over the property as the new co-owner without undergoing probate.
Tenancy by Entirety
Tenancy by entirety only applies to married couples. However, like any other life mishap, the couple could decide to end their union in divorce. In this case, the joint ownership turns into a tenancy in common whereby either of the couple could sell or transfer the property rights to their spouse. Tenancy in its entirety also reserves the survivorship rights whereby the surviving partner remains the sole owner of the property left behind.
Tenancy in Common
Tenancy in common allows unequal ownership rights from the parties involved over the real estate property. In this case, one party could own a greater portion of the estate in question. Either of the co-owners can sell a part of their share in the property without seeking consent from the other owners.
How to Avoid Partition Lawsuits
Partition lawsuits occur when co-owners have not foreseen there is a time they might lose interest or certain things arise, making them break their joint ownership. However, when there is enough plan, co-owners can avoid partition lawsuits by creating a working plan for the period they will be in joint ownership. This is because when a partition lawsuit is filed, in most cases, there is no room to avert the decision.
Contractual Agreement
A contractual agreement prohibits co-owners of a property from filing for a partition lawsuit under certain circumstances. Contractual means the agreement is only effective for a certain period of time. Therefore, for a certain period, either party cannot seek to sell the property without the agreement of the other party. However, when the time elapses, they can be free to seek partition after the property appreciates in value.
Buyout
Partition action is one of the many solutions co-owners can seek to break joint ownership, but buying out is also a viable solution. Before the case reaches the courts, the parties may seek outside negotiations to buy ownership rights from the parties that want out with the joint ownership. One buyer agrees to buy the interest of the other, thus avoiding the lengthy process to file for partition action.
In conclusion, it is quite common for co-owners of a real estate property to seek separation in their joint investment. The court comes in handy to help the disagreeing parties resolve their differences in the sale of the property. Additionally, for a partition to take place, each co-owner must have equal rights to the property, and the proceeds must be equally and fairly shared with all the parties.
