Partitions of Land

Types of Partition

There are two kinds of partition:
  • 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 portion of the property.
  • 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.

Remedy

The right to partition is an “absolute right” that’s restricted only by law, written waiver or a provision in a will. The right can be used at any time, even if it’s not referenced to in a contract. It’s usually a remedy that’s favored by the court and is readily granted.

Avoiding a Partition Action

In certain situations, some measures can be taken to avoid partition actions, at least for a period of “reasonable duration.” For example, a co-tenant who agrees not to partition may be barred from claiming the right, particularly if the agreement is in writing. Moreover, a co-tenant that obtains title through an instrument that includes a non-partition agreement will be bound by those terms. The courts, however, will generally not enforce an agreement that restricts the right to partition for an unreasonable amount of time nor will the courts enforce an agreement to never partition.

Voluntary vs. Judicial

Co-tenants 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, a lawsuit may be filed so that the courts will create a partition. Unlike voluntary partition, court-ordered partition (or compulsory partition) is subject to numerous legal principles such as statutory limitations, laches (undue delay) and public policy. Similarly, the case is decided on various factors like rights, titles and interest of the parties to the suit.