Are you having problems getting along with the co-owner of your property? Do you disagree about how the property should be used? Do you want to sell, but your partner wants to stay? If you can’t see eye to eye with your co-tenant, maybe a partition action is right for you. To begin, let’s look at two example scenarios where a partition action might be filed.
Let’s say that your parents leave the family home to you and your two siblings. One of you wants to sell the property, one of you wants to rent out the property, and one of you wants to live on the property. You’ve reached an impasse. How do you decide what to do?
You and your business partner purchased a warehouse. However, since this purchase, your partnership has ended, and the warehouse has become a source of conflict. How can you resolve this conflict?
In situations like these, people will often file an action to partition the property. In a partition action, it doesn’t matter if the rest of the co-tenants agree to it or not; the law allows a single co-tenant to dissolve the joint tenancy. The court will have no choice but to proceed with the partition.
Whether you have agreed to it or not, you may be headed for a partition lawsuit, so it’s important that you understand exactly what you are getting into. Here’s how it works in Tennessee.
What Is A Partition?
In the eyes of the law, the co-tenants of a property are entitled to equal shares of the undivided property. A partition is a legal way of dividing this property so that each cotenant can have their share all to themselves. The concept is simple enough, but the practicalities of a partition can get complicated.
There are basically 2 types of partitions.
Partition By Sale v. Partition In Kind
Partition by sale: The property is sold as a whole, and the proceeds from the sale are evenly divided amongst the co-tenants.
Partition in kind: The property is physically divided so that each co-tenant receives an equal portion.
While Tennessee law favors partitions in kind, partitions by sale are also very common, as long as you can prove that it is legally necessary to do so.
How Do You Prove That A ‘Partition By Sale’ Is Warranted?
If you want a partition by sale, the burden of proof will be on your shoulders. There are basically two situations where you will be able to prove that a partition by sale is warranted.
When the property cannot be physically divided. For instance, it is usually not possible to simply cut a house in half. This kind of solution tends to be more practical when dividing a tract of rural land.
When a partition by sale is indisputably to the advantage of all of the co-tenants.For example, many properties are not worth as much after they have been physically divided, as they would have been whole. In these cases, the financial value of each co-tenant’s share would be worth more if the property were sold as a whole than if the property was physically divided amongst the co-tenants.
Note: Partitioning A Property Does Not Always Yield Equal Shares
It’s important to note that in partition actions, the law is more concerned with making sure that the verdict is fair than it is with making sure properties are always divided equally. There are some scenarios where it might be deemed unfair to award co-tenants with equal shares of a property. Here are a few situations where this might be the case:
When one co-tenant has invested significantly more money in maintaining the property than the other(s). In this case, because this maintenance directly affects what the property is worth, the court may decide that it is fair to compensate this co-tenant for their investment.
When one co-tenant has invested their own money to improve the property. Again, because these improvements will directly affect the property’s sale price, the court may rule against an equal partition in favor of compensating that co-tenant for their investment.
When one co-tenant paid more than the other at the property’s initial purchase. If this is the case, the court will likely honor the original shares of the property that were established when it was purchased, instead of giving the co-tenants equal shares.
There are many other scenarios where the court might decide not to partition the property equally. Remember that the courts tend to rule in favor of overall fairness, not strict equality.
Need A Consultation In The Nashville Area?
At Rochford Law & Real Estate Title, we are well equipped to guide you through the treacherous waters of partition law. Don’t hesitate to contact us! We’d love to hear from you!