A petition to partition is a legal device that the co-owner of real estate uses to divide its ownership. For example, when one owner wishes to sell but the other does not. If the parties cannot come to an agreement, the party who wants to physically divide or sell the property can file a petition to partition.
Petition to Partition Under Massachusetts Law
A petition to partition is an action used when a property owner wishes to sell a property they own as joint tenants with someone else who doesn't want to sell. In Massachusetts, a person who wishes to sell a property has legal recourse; the party who refuses to sell does not need to agree with the action.
Legally partitioning the property means bringing it to a court proceeding to force its sale or physical division and dividing the proceeds among co-owners. In most cases, the physical division of real property is impossible or impractical. The court, therefore, generally orders its sale via auction or private sale and appoints an impartial commissioner to oversee the process.
The party who wishes to continue owning the property can always buy the other person out, but its sale is likely if they cannot afford to do so.
Process and Timeline of a Petition to Partition
A property owner wanting to file a petition to partition can do so in land court or county probate court where the land is located. Notice of the legal proceeding must be served on any parties who have an interest in the land, including other owners or a mortgage lender. Legal notice of the petition to partition is published in a local newspaper and notice of it must be filed with the county deed registry.
A partition proceeding takes from 1 1/2 to two years to go to trial. The process can take longer because it depends on how complicated the case is, the disputes between the involved parties, and the court's schedule.
Share of the Proceeds in a Partition Action
If the property is undeveloped or there is more than one unit on it, a physical division may be possible. The court can also order the sale of the property or a buyout by one party of the other's interests. The goal of the court is to get the greatest return on the property for all co-owners, according to its fair market value.
Once the partition happens, the division of the proceeds between owners will typically be in accordance with their interest in the property. For instance, if one owner owned 60 percent, while another owned 40 percent, generally the first owner would get 60 percent of the proceeds, and the other owner would receive 40 percent.
However, the court must consider other factors, such as if an owner contributed more than their ownership share toward the property's expenses.
Possible Issues in a Partition Action
While a partition action is mostly straightforward, problems may occur when it comes time to determine the division of proceeds. Parties may disagree about ownership percentages contributions they or others have made to the property. For example, a person may have made improvements that increased the value of the property, or another may have decreased the value through neglect.
Settling the case before filing a partition action may be advantageous to both parties, as litigation is expensive and time-consuming. But settling a case is final – there can be no appeals.
Annabella Gualdoni has written newsletters and reports for corporations and nonprofits since 1994. She is a real estate professional and also teaches subjects including international cooking and travel, dating/relationships and personal finance. Gualdoni has a Bachelor of Arts in international development from University of California, Berkeley, a Master of Arts in international relations from Boston University, and a Juris Doctor from Boston College Law School.