A tenant in common forced sale refers to a court order directing the tenants to sell a particular piece of property in an attempt to divide their interest in the real estate. Most forced sales of real estate held by two or more parties as tenants in common occurs because the tenants cannot reach an agreement as to the use, improvement or willingness to transfer or sell the property.
Tenancy in Common
Tenant in common is the legal name for a form of ownership in real property by two or more persons. A tenant in common may sell or mortgage his interest in the property without the consent of the other co-tenants. The party purchasing the interest becomes a tenant in common with the remaining co-tenants. Unlike a joint tenancy, in a tenancy in common, there is no right of survivorship in the other co-tenants in common. If a cotenant dies, his interest in the property becomes an asset of his estate and can distribute to his heirs.
Incidents of Ownership
Although one cotenant may contribute a disproportionate share of the purchase price and acquire a higher percentage interest in the property, each cotenant has the right to occupy and enjoy the entire property. One cotenant cannot designate certain areas of the property as reserved for his exclusive use and enjoyment. A cotenant is free to sell his interest in the property without the consent of the other co-tenants. The person who purchases the interest becomes a tenant in common with the remaining co-tenants.
Petition to Partition the Property
If any cotenant in common wishes to end the joint ownership in the property, he has the right to petition the probate court. The court will appoint an administrator who will either divide the land, giving each cotenant exclusive rights in part of the land, or order the entire land sell at auction and distribute the proceeds between the co-tenants in proportion to their interest in the property.
When a court considers a petition to partition the property, it may take into consideration the unequal interests of the co-tenants when disbursing the proceeds from the sale. For example, if A and B are tenants in common, but A has a 70 per cent interest -- paid 70 per cent of the purchase price -- and B has a 30 per cent interest, the probate court may disburse the sales proceeds in proportion to the existing ownership interests of the two co-tenants in common. In cases where one of the co-tenants makes improvements to the property that increases the value of the land, a court has the discretion to reimburse that cotenant for the cost of the improvements.
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