Real Estate Partitions
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What are Real Estate Partitions?
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. A partition, or division, of property can be arranged on a voluntary basis if all owners agree to it. However, if they don’t agree, a judge can order a partition of the property based on one owner’s request. If done gracefully and with agreement, it can result in a more efficient splitting of the property where all of the former owners are happier owning their own portion.
Types of Partitions
There are two different types of partition:
- partition in kind
- partition by sale
A partition in kind, also known as an “actual partition,” severs the individual interest of each joint owner. Each owner ends up controlling an individual, divided portion of the property. This is the most common type of partition, and tends to be easiest when the parties generally get along, but simply disagree about the best use of the land, and also where the land is easily divided into discrete portions. This allows for a “conscious uncoupling” where each person takes a piece of the land as his or her own, and records that division with the county clerk.
Whereas a partition by sale, also known as partition by “licitation” or “succession,” is accomplished by selling the entire property and dividing the proceeds among the owners. This type of partition is used when partition in kind is difficult to perform or when the parties cannot agree. If, for example, the property is a small lot with one cottage on it, or something equally hard to slice down the middle, partition by sale might be the best bet. The co-owners will sell the land, dividing up the proceeds, and each have the opportunity to go out and buy their own, separate properties.
Co-owners may voluntarily agree to partition their ownership rights and divide the property. Such agreements are generally enforced unless they adversely affect the rights of another person. If all owners don’t agree to the partition, one owner may file a lawsuit asking the courts to compel a partition. Unlike voluntary partition, court-ordered partition (or compulsory partition) can be defended against based on various legal principles, such as statutes of limitations, laches (undue delay), and public policy. Similarly, the court will decide the case based on various factors like rights, titles, and the interests of the parties to the suit.
How we can help
As a local multi-faceted firm, we regularly handle matters related to ownership of real estate and partition law throughout New York City and Long Island. At Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP we are known and proud of our reputation for being attentive, responsive, and considerate of clients’ needs throughout our dealings with a property owner, landlord, buyer, or seller in real estate matters. Our office is conveniently located, and our values are based around client service. At SBAGK, we offer free consultations so that we can help you understand what your options are regardless of whether you are a first time home-owner or an experienced real estate professional.