How to force a division of real estate between joint owners.
Oftentimes, real property will have two or more owners who might not want to be co-owners anymore. This can happen when siblings or other heirs inherit land, when a business or romantic relationship falls apart, and many other circumstances.
When one owner is ready to force a division or sale, s/he can do so by filing a “Petition to Partition” the real estate, in the circuit court of the county where the property is located. Read on to find out more on how the mechanics of these lawsuits work.
Who can file a “Petition to Partition”?
Basically any co-tenants, tenants in common, or joint tenants of real estate can ask the court to fore the partition or sale of the real estate between co-owners. The property can be held jointly in fee simple by any two people or entities, and does not have to be heir property.
As long as two or more people have title in fee simple, the property can be divided between them. Interest in the property that is not in fee simple can generally not be divided, though. So someone with only mineral rights or a life estate, for example, cannot request for the property to be partitioned. These more complicated types of ownership structures should be discussed with experienced real estate attorneys.
Does the property have to be physically divided, or will it be sold for money?
The answer to this question, like so many legal questions, is that “it depends”. There are two types of partition.
The preference of the courts is for land to be divided physically between the co-tenants, if that what the co-tenants want and if that is a practical solution. This is known as “partition-in-kind”.
A sale of the property can be conducted if the parcel is too small or is otherwise impractical to divide physically. This is known as “partition-by-sale”.
So for example, a large swath of timber or farmland with plenty of road access will be easily divisible. This type of property will likely be divided physically, unless all parties otherwise agee. A 1/2 acre suburban lot with one home on the lot is not so easily divisible. This type of property would likely be sold, unless all parties otherwise agree.
If the property is divided by sale, the sale proceeds are then divided evenly between the parties, as according to their public record interests. Usually some costs will be paid from the proceeds before they are divided, such as for court costs, an appraisal, survey, and even attorneys fees.
Can one co-tenant buy the property from others?
Yes. Once a Petition for Partition by Sale is filed with the circuit court, an appraiser will be appointed, and s/he will file a report telling the court how much the property might be worth. Even if the plaintiff petitions for division, a sale can still be requested by defendants. All parties then have thirty days’ time to deposit enough funds that will cover the purchase of their co-tenants’ interests, with the clerk of court.
Be aware that the Alabama Uniform Partition of Heirs Property Act states that the plaintiff in the legal action will not be able to offer funds for purchase, but the courts have struck that provision as unconstitutional. All parties to partition actions have the right to offer to purchase their co-tenants’ shares. You should always be careful about reading statutes, because the interpretation of what’s written in a statute can be changed by the courts for many reasons.
You can read the Alabama Partition Code in Title 35, Chapter 6, and the Alabama Uniform Partition of Heirs Property Act in Title 35, Chapter 6A, here: http://alisondb.legislature.state.al.us/alison/CodeOfAlabama/1975/Coatoc.htm
What happens if the property is ordered sold, but co-tenants all want to purchase each other’s rights?
In a situation that gets this far, the court will order an auction. If the property isn’t divisible by survey, and the co-tenants squabble over who will buy who out, then the court will order the property to be sold on the courthouse steps to the highest bidder.
The best strategy in these cases is usually to try and work together with your co-tenants to come to a solution that everyone can live with. The court is not very masterful at physically dividing land, and will have short patience with overly argumentative co-tenants.
If you have a legal interest in such property, seek legal advice from experienced counsel. A good real estate lawyer can review the property in question, give you an informed opinion on whether or not the court will sell the property or divide it, and walk you through filing a partition if necessary.
Cook and Associates can help you file your petition action in Montgomery, Alabama and all other counties in the central Alabama region. Call us at 334-356-7879 to make an appointment for a consultation with an experienced, knowledgeable real estate lawyer.