Often people are involved in bitter disputes with a co-owner of real estate, often a sibling. Many believe that they have no recourse, that they are stuck in this relationship because their parent or relative left them a fractional interest, a one-half, one-third, one-quarter or even a one-twelfth interest, in their will.
The right to partition is an “absolute right,” which can be restricted only by law, written waiver, or a provision in a will. The right can be used at any time, even if it’s not referenced in a contract. Partition is a remedy that’s usually favored by courts, for the sake of maintaining peace between the parties.
To bring a partition action, a landowner must bring a complaint before the Court in which the real estate is located. The complaint must be signed by the landowner, set out a detailed description of the property to be partitioned, set out the parties who have an interest in the property, even lenders, tenants, lien-holders or local taxing bodies, with the specific interests detailed and request the property be partitioned or sold by the Court. The Court will then ascertain the rights and interests of the parties in accordance with the information contained within the complaint.
Typically, the Court appoints a commissioner, usually an appraiser or other similar real estate expert, to determine whether the property can be divided “without manifest prejudice to the rights of the parties” and recommend a method of division.
If the property cannot be so divided, a sale is recommended. Upon the division or sale of the subject property, the parties will be issued separate deeds or funds in accordance with their respective rights and the co-ownership is effectively severed.
Do you have any questions about partition actions? Give us a call at 312-558-1850 or send us a message today.