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Partition by Sale – What You Should Know!

An heir or beneficiary in a will or trust can lodge the petition to partition if he/she can’t agree with the other beneficiaries on whether to sell or keep the property.

Partition by sale also applies to landlords or homeowners that jointly own residential or commercial property.

The courts consider a partition by sale action only after ascertaining that the property cannot be physically divided among the co-heirs. An example is a single-family unit owned by two brothers in disagreement.

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How to Stop a Petition to Partition

Disputes in property ownership are almost always to be expected. A petition for partition happens when one of the property owners pushes to sell a co-owned property to get their share of proceeds from the real property. Although it’s not easy, a few legal defenses can be leveraged to prevent the partition.

Partition by Sale

An heir or beneficiary in a will or trust can lodge the petition to partition if he/she can’t agree with the other beneficiaries on whether to sell or keep the property.

Partition by sale also applies to landlords or homeowners that jointly own residential or commercial property. The courts consider a partition by sale action only after ascertaining that the property cannot be physically divided among the co-heirs. An example is a single-family unit owned by two brothers in disagreement.

For instance, if the assets involve stock shares or personal property, these call for a partition by kindPartition by kind is the equitable and physical sharing of assets without having to sell them. The courts can rule a partition by sale if it’s established that partition by kind will result in losses for one of the parties involved. The court orders the sale of the entire property for equal distribution of proceeds among co-owners.

Partition Lawsuit Procedure

complainant, a co-owner of the property, starts by filing the petition with the Clerk of the Court in the county where the home is located.

In the submission, one must name all the other parties involved in the property owner and those that claim an interest in it.

Three types of property co-ownership qualify for petitions to partition: 

· Joint Tenancy 

· Tenancy in common 

· Tenancy by the entirety 

In all the three co-ownerships, a home is owned by each individual as a whole; there is no partitioning. No rooms are off-limits. Once a judgment is issued in the lawsuit, it will bind everyone involved in the property’s ownership. When reviewing the petition, the court will first examine whether the property can be physically divided among the owners.

For instance, if there are two homes and two co-owners, the court will advise a partition in kind to prevent the forced sale of the property. The court further determines the interests of the parties involved and whether there are liens against the property.

As a plaintiff in a partition by sale case in California, the burden of proof rests with you. You must show the courts that a partition in kind cannot be made or how it could lead to property value loss.

Partition Lawsuit to Force Sale of the House

A forced sale partition action fractures the joint ownership contract of a house. Provided you have an interest in the property. You can push the others to sell via petition to partition. You have that right, even if you are a minority co-owner.

In many instances, complainants don’t even have to go to court to accomplish the home’s forced sale. Before filing the petition, you can bring all other co-owners to the negotiation table in the presence of your lawyers. Mediation can help to avoid a costly lawsuit. You can choose to file a partition lawsuit if a fair deal cannot be reached outside the courtroom.

Once you start the court process, a judge will appoint someone titled a ‘receiver’ or ‘commissioner’ to manage the property until a judgment is passed and enforced.

The receiver pays bills and utilities, collects rent, and even finds a realtor to handle the property sale if the judge rules the plaintiff’s favor. This designated individual further handles the distribution of sales proceeds to each owner per the court ruling.

Joint Tenants: When dividing up the property, the sharing is done equally among all the owners. The joint tenancy deed allots equal stakes in the property.

Key takeaway: No credits are earned for an excessive contribution at the time of buying the property. However, reimbursements may be made to co-owners that spent more on property improvement and maintenance.

Tenants in common: In a T.I.C. contract, owner shares are considered during partition. 

Key takeaway: Owners who made the most considerable contribution during the initial purchase gets the lion’s share of the proceeds. The judge will also consider other expense contributions, from renovation to maintenance and utilities.

Tenancy by Entirety: This relates to the division of property after a divorce. The partition action is filed following a divorce, and the court instructs on the sharing formula.

How to Stop a Petition to Partition

If you are a party in a petition to partition, the courts may give you the chance to buy out the other co-owners to prevent the sale. In some cases, it’s within the right of co-owners who do not want to sell to merge their shares. By merging the shares, creates majority ownership that might help to prevent a partition by sale.

Use math and law. Show the calculations and legal citations that prove that a forced sale partition will injure other co-owners. Injuries here refer to financial losses or emotional problems.

Further, property co-owners, including divorcees, can elect to settle the property’s distribution out of court. If an agreement can be reached in mediation, the co-owners get to avoid the petition to partition.

Partition Lawsuit

Before filing a petition to partition lawsuit, your lawyer will advise you to consider mediation or voluntary sale. The latter is when you get the other co-owners to agree to a buyout so you can get your proceeds and opt-out.

If all the above fails, the next step is the courts. The case is filed with the Clerk of Court in the county where the house is-the Clerk will then act as a judge and appoint commissioners.

You will be required to prepare and file the petition to partition lawsuit per the state’s partition statutes. You are not mandated to hire a lawyer, but the legal technicalities involved in a petition action will require an attorney’s wits and expertise.

Partition lawsuit commissioners are neutral parties who investigate and inform the court whether a forced sale partition is the only way out of the dispute. If the court rules your favor as a plaintiff, the commissioners will have 20 days to partition and share the property.

Petition for Partition definition

Petition to partition is a legal action used to divide real estate or other assets jointly owned by family members, business partners, and other groups of people.

After investigating the petition lawsuit, the court will choose to divide the property through partition in kind or forced sale partition. As a legal device for the division of property, petition for partition is only eligible for joint tenants (co-owners), tenants in common, and in some states, tenants in entirety.

During the petition, creditors might be included if there are liens on the property. Debt on the property solidifies the plaintiff’s case to partition by sale.

Partition of Property among Family Members 

When it comes to homes and similar real property, the physical division can lead to limited property value access or deterioration. Therefore, partition by sale is one of the most commonly leveraged approaches to divide property among family members. It works for divorced couples after the separation, siblings that fall out after inheriting a single home, or brothers that fall out after co-buying a home.

The court petition is only used if any of the parties involved contests the move to sell or partition. Otherwise, the family can sell the property and move on happily.

 Partition Action California

As defined in the California Code of Civil Procedure C.C.P. 872.210, a property co-owner has the right to request a partition. The partition action doesn’t result in a new title in the property.

The eventual outcome can be the termination of the entire ownership through a sale or the termination of one of the owner’s interests in the property.

Rents, expenses, debt, profits, and easement are part of the considerations in partitioning and distribution of proceeds. Primarily, though, the court considers each co-owner’s shares in the property when deciding on division and distribution.

Based on California Law Civil Procedure Code section 872.210, you can file for partition action if:

  •  You and your co-heirs can’t agree to sell or keep an inherited home.
  • You want a fair division of property after a divorce.
  • You are an investment partner that wants out of the jointly owned property.

Partition Legal Definition

Legally, a partition is a court-ordered division or sale of property, mostly real estate, two or more individuals own that. A co-owner has a right to seek partition.

The court ordered division can be a partition in kind or forced sale partition. With partition in kind, property such as land is physically split between the parties of interest. In a forced sale partition, property (a house) is sold, and the money is shared between the parties of interest.

The petition to partition is a legal tool designed to resolve disputes between co-owners. Its outcome is a court-ordered physical division or sale of the property for fair sharing of proceeds among co-owners. Mediation is the key to stopping a petition to partition.

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