Here’s a question we were recently asked: “My brother — who is incarcerated — and I co-own 133 acres of land in Tennessee. I want to sell but he doesn’t. There’s no way to fairly divide the property because of the dimensions of the land, much of which is in a flood plain. What can I do? And how are the legal fees paid?”
It’s a pretty interesting question and we hear these questions a lot. (Take a look at How to Divorce Your Co-Tenant.) It’s not at all uncommon for co-tenants or tenants-in-common (that’s what the legal community calls jointly-owned property) to have differing desires for a piece of land.
All co-tenants have the right to use the property and share profits from it; however, when disagreements arise about how to use the property — if, say, one person wants to keep it and live on it and the other wants to sell it — things can get sticky and contentious pretty quickly.
That’s where partitioning comes into play.
What is Partitioning?
Partition is the act of legally dividing lands held by co-tenants into distinct portions so that they may be held separately. Partitioning can be voluntary (which was unlikely in the scenario mentioned above) or decided by the courts.
A partition action is a lawsuit in which one of the property’s owners asks the court to divide the property among its owners. If the property can be divided equally and fairly, the court will do so. This is called a partition in kind.
Obviously, in the situation above, an even and fair partition isn’t feasible. In this case, a partition by sale may be warranted and the proceeds of the sale will be divided equally between the co-tenants.
Although the burden of proof is placed on the party seeking partition by sale, meeting the burden isn’t terribly difficult:
TN Code 29-27-201 states: Any person entitled to a partition of premises, under the provisions of part 1 of this chapter, is equally entitled to have such premises sold for division, in the following cases:
(1) If the premises are so situated that partition thereof cannot be made; or
(2) Where the premises are of such description that it would be manifestly for the advantage of the parties that the same should be sold instead of partitioned.
Simply put: the co-tenant is entitled to partition by sale if the property cannot be divided or if the co-tenant would be put at a disadvantage if the property were divided.
Under Tennessee law, the answer to our client’s dilemma appears quite clear: partition by sale.
In fact, a 2004 case, Potts v. Rogers, bears a striking resemblance to our example. In this instance, 115 acres was left to six siblings after their mother died intestate (without a will) 17 years earlier. Of the 115 acres, 100 acres were located on a floodplain. One of the siblings argued that 19 acres that adjoined his separately owned property should be carved out as his share. However, those 19 acres contained the only 15 acres above the floodplain, The court ruled that a fair division was not feasible and that the property should be sold.
How Are Attorney Fees Paid in a Partition Case?
In 1968, the Supreme Court of Tennessee ruled in the case of Montgomery v. Hoskins that “if counsel for one side is to be paid from the common fund then counsel for the other side should be so paid.”
In other words, the trial court has the discretion to award attorney’s fees from the common fund (proceeds of the sale) to attorneys for all involved parties. For an expert partition attorney, contact Rochford Law & Real Estate Title at 615.269.7676.
