Law Articles

Partition Actions: Breaking Up Is Hard To Do.


Maude and her brother, Claude, bought a house together. They intended to use the property as a residential rental to supplement their income in retirement.  Neither of them had a spouse or children.  They each owned an undivided one-half (1/2) interest in the property.

Partition Property - Ohio LawyerAs time passed, Maude became disenchanted with being a landlord.  She and Claude began fighting over the maintenance costs.  Maude offered to sell her half of the property to Claude, but he refused.  She then demanded that they sell the property so she could invest her funds in a different way. Again, Claude refused.  He did not want to give up the income stream.  Maude was unable to find a buyer for her interest of the property.  Nobody was willing to be a co-owner in the property with Claude.  So, how does she remove herself from this investment?  Although not ideal, a partition action in court may be the only answer.
Partition is the division of real property between two or more co-owners.  It can be achieved through a voluntary agreement or by judicial proceedings. 

Practically speaking, the vast majority of partitions occur through judicial proceedings since the relationship of the co-owners has soured to the point where the parties are unable to reach ?any agreement.

The primary purpose of a judicial partition is to divide the real property among the co-owners in shares equal to their ownership interests in the property.  However, the division does not need to be perfectly equal.  It is up to the court to approve the most equitable division possible based on the unique facts of each case.  A court will consider unequal contributions toward the purchase price of the property or if the parties intended to share the property in different percentages.    

The judicial partition begins with a petition filed by a party who has an interest in the real property.  The petition must be filed in the court of common pleas in the county in which the property is located.  All persons holding an interest in the property must be named as a party.  The petitioner must demonstrate that he either has possession of the property or has an immediate right of possession to the property.  He must also show that it is necessary to divide the property in order to protect his use and enjoyment of his portion.
If the court agrees that a partition is necessary, it appoints one or more disinterested persons known as commissioners to view the property and propose a proper and equitable division. They take into account the location of any buildings and the quality of the different parts of the property.  Provided the court is satisfied with the division, it will issue a writ of partition directing the sheriff to divide the property into separate lots. 

However, if the commissioners determine that the property cannot be partitioned without doing "manifest injury to the property,” then the property will not be divided.  Manifest injury to the property means the division will cause a substantial loss of value to the whole.  In this case, the commissioners will provide the court with a valuation of the property.  One or more of the co-owners can elect to take the property at its appraised value.  Otherwise, the court will order its sale by the county sheriff at public auction whereby the property cannot be sold for less than two-thirds of the appraised value. 

Many partition actions result in a public auction since it is impractical, if not impossible, to divide buildings and residences.

Since public auction rarely results in a sale for the fair market value of property, a judicial dissolution should be the last option. If you are in dispute over property you co-own with others, it is important to consult with a trusted attorney to discuss the best available options.  The attorneys from Medina, Ohio at Laribee & Hertrick, LLP can assist you.

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This article is intended to provide general information about the law. It is not intended to give legal advice.  Readers are urged to seek advice from an attorney regarding their specific issues and rights. To contact an attorney at Laribee & Hertrick, LLP, request more information about our legal services today.
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