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 owners of property. It is sometimes described as a forced sale. Under the common law, any owner of property 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 their land by entering a deed poll (sometimes referred to as “carving out”).
Why forced sales occur
Forced sales generally occur because owners of property are unable to agree upon certain aspects of the ownership. The owners may disagree on how to use the property, the amount of money to invest into the property, on their right to occupy and use the whole of the property. If the parties cannot come to an agreement, the case moves to court through a petition to partition action. As the number of cohabitants increases in the United States, the petition to partition action has become more common as a remedy to divide real and personal property.
Property may be owned by more than one person either as joint tenants, tenants in common, and in some states tenants by the entirety. The choice of which tenancy to enter into is made by the parties at the time of purchase. With each type of tenancy, each owner has the right to occupy the whole. That means that owners are not allowed to designate certain rooms as their own, but each element of the property is enjoyed fully by all parties.
Types of partition
There are three kinds of partition which can be awarded by the 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. Partition in kind is a default method of property partition.
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. Vealencis, 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.