Under the laws concerning real property, two types of partition exist: partition in kind and partition by sale. Partition in kind means dividing the parcel of property. A partition sale causes the parcel of property to be sold and the profits to be divided. Although partition in kind is the preferred method of partition, a cotenant may push for a partition sale when it is not possible to physically divide the parcel equitably and fairly. A cotenant must file for partition by sale in the civil court where the parcel is located.
Meet with an attorney who has experience in real property law. Tell the attorney that you own a parcel of land along with another cotenant or other co-tenants. Tell the attorney what proportion of the parcel that you own, and let the attorney know if you have made any improvements on the parcel without the contribution of your cotenant or co-tenants.
In a partition sale, a cotenant whose efforts and funds resulted in improvements to a parcel possesses the right to recover the parcel's increase in value that resulted from the improvements.
Prepare the petition. The attorney will take the information that you gave him and incorporate it into a petition for a partition sale. The petition should include the nature of your title, a pertinent description of the parcel that you want partitioned and the name of each cotenant named as defendants.
File the petition with the clerk of the court in the jurisdiction where the parcel is located. The filing fee varies by jurisdiction.
Serve the defendant. Arrange for service of process by contacting the sheriff's department. Go to the sheriff's department in the county where the defendant lives, and pay a small fee to have the defendant served. Give a physical description of the defendant to facilitate service of process.
Wait for an answer after the defendant has been served. If the defendant does not respond, the court may grant a default judgment in your favour. If the defendant responds, you may need to attend a court hearing or prepare for a trial. If the court finds that you are entitled to a partition by sale, the court will order partition of the parcel, appoint one suitable disinterested person to be the commissioner to make the partition and issue a writ of partition.
Gather all records having to do with ownership of the property, and be prepared to present them as evidence in court.
Tips and warnings
- Gather all records having to do with ownership of the property, and be prepared to present them as evidence in court.