PARTITION ACTIONS TO DIVIDE REAL PROPERTY

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Partition Actions to Divide Real Property

If joint owners of real property, such as land or a home, cannot agree, e.g., one owner wants to sell the land and the other owner wants to rent the land as an investment, partition of real property needs to be considered.

In general, actual partition is rarely available. One exception is a parcel of land with the same terrain and the same access. Therefore, partition is almost always handled through a sale of the real property, and the proceeds distributed by court order in the relative percentages of ownership. For example, if three siblings inherit a home from their parents that only one sibling is managing and paying for repairs and maintenance, that sibling would receive more of the proceeds of sale.

The first step in a partition action after filing the lawsuit is the court appointment of a neutral third-party to sell the real property. Although usually the court appoints an impartial Special Commissioner to sell the real property, sometimes the parties can agree on a local listing broker to sell the real property.

Frequently Asked Questions about Partition Actions to Divide Real Property

Five years ago, my daughter and her boyfriend purchased a house in the Arrowhead area. Her boyfriend is a classic "deadbeat," and our daughter is tired of paying all of the bills and wants to move to California. What does our daughter need to do to have her boyfriend's name off the deed?

First, your daughter should file a partition lawsuit. A special commissioner (usually a real estate broker who is paid a real estate commission) will be appointed by the court to sell the home and divide the sale proceeds. These sale proceeds are divided only after payment of any mortgages and liens and costs of sale such as the commission and escrow fees. If your daughter has been "paying all of the bills," your daughter should be able to prove in that partition lawsuit that she is entitled to more of the sales proceeds than her boyfriend.

My mother and her two brothers own 3 acres of unimproved desert land in north Scottsdale worth approximately $450,000. The problem now is that the property taxes have become expensive, and because my mother lives on a fixed income, the payment of her one-third of the property taxes is becoming more difficult every year. Her two brothers do not want to sell the three acres in this depressed market. Is there any way that my mother can require the sale of these three acres?

If your mother and her two brothers cannot agree, your mother should be able to go to court to request a partition of these three acres. If these three acres are capable of being actually partitioned — that is, the three acres are similar in topography and value — the court should order that your mother would own a specific one acre which she could then sell. Otherwise, the court would appoint a special commissioner to sell the three acres and divide the sale proceeds among the two brothers and your mother.