Tenants in some form of concurrent estate may bring a petition to partition. The judicial act of partition divides a concurrent estate between individual tenants. There are different types of partition, each with different legal consequences. Those who wish to bring an action for partition should seek the advice of a lawyer.
A concurrent estate is one in which several owners (co-tenants) own a single piece of property. Each co-tenant has the right to possess, or use, the entire property, but no one co-tenant may exclude the others or in any way interfere with their use of the property. Most jurisdictions also allow a co-tenant to profit from the property, and keep his profits, so long as he has not excluded any of the others by doing so.
Types of Estate
Two general types of concurrent estate would be subject to partition. A joint tenancy means multiple tenants hold the property, but if one of them dies, his interest is lost and absorbed into the interests of the other two. Tenancy by the entirety operates as a joint tenancy between two spouses. The other general type, tenancy-in-common means multiple owners hold the property, but death does not extinguish one owner's interest. His interest will be severed from the whole upon his death and will be capable of transfer via will or inheritance.
Partition occurs when one or more of the co-tenants decides that he does not want to co-own the whole property anymore. Rather, he would like to solely own his share of the property. Such a tenant would then petition a court to partition the estate. Partition is an equitable remedy and must be brought in a court of equity, not law.
Types of Partition
Three ways exist for co-tenants to partition. Voluntary agreement is a contractual arrangement that does not involve the courts. The other two methods, partition in kind and partition by forced sale, require a petition to partition. Partition in kind, divides the property based on each tenant's individual share. Partition by forced sale is accomplished by selling the property and dividing the proceeds of the sale based on each tenant's share. Partition by sale is the modern trend in courts, mostly because selling the whole parcel of land retains more of its value.
Contractual agreements stating tenants will never seek a partition action is not enforceable in court; the law has decreed that petition should always be an option for co-tenants. Courts will sometimes give weight to a contractual provision that prohibits a co-tenant from partition, but that restriction must last only for a "reasonable" time period.
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