How to File a Partition by Sale

By Beverly Bird
A partition by sale is usually only ordered when there's no way to physically divide the property.

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There are a few reasons why you might need to ask the court to order a partition and sale of a piece of real property in which you have an interest. A romantic relationship with your co-owner might have gone south, or you may have inherited the property with someone else and you’d rather have the cash than the real estate. The law is on your side. The court won’t force you to retain ownership of property you no longer want.

Partition by Sale vs. Partition in Kind

The court must let you out of co-ownership of property because you have a legal right to sever such a relationship if you choose. The judge can’t rule against your petition, and your co-owner has no legal defense to prevent the partition from happening. But the judge might not order that the property be sold, which is what a partition by sale is. Courts are typically more inclined to order partitions in kind -- if you have two acres, the judge may give you an acre and give the other acre to your co-owner if both parcels would be of equal value after the division. But if one resulting parcel would be worth more than the other, a partition by sale would be the only reasonable alternative -- it’s a solution of last resort. The court also typically orders a partition by sale if the property is a home or structure. You can’t saw a building in half or erect a dividing wall down the middle to make it into two equal units.

Filing for Partition

The easiest way out of co-ownership is to negotiate a settlement with your co-owner. She may be able to buy out your interest, or if not, she might agree to sell her share. You can ask a lawyer to draw up a new deed or do it yourself, then memorialize the deal in a written agreement. A partition by sale lawsuit is only necessary when one co-owner digs in her heels. Although the exact details of the process can vary by state, you typically file a petition with the court in the county where the property is located and serve all interested parties with a copy. This includes all co-owners. If you have a mortgage against the property, you may have to serve the lender with a copy of the petition, as well as anyone else who has a lien against the real estate.

Other Steps and Requirements

If you ask the court for an order to partition the property, the process can be expensive. The court will want to establish fair market value and this could involve hiring an appraiser, a surveyor to establish the exact parameters of the property, or even an unbiased professional called a receiver or a commissioner to fairly manage the details of the valuation and sale. The receiver or commissioner might also be asked to advise the court as to whether the property can possibly be partitioned in kind. You and your co-owner would both be responsible for these costs in proportion to the percentage of the property each of you owns, even if one of you is opposing the partition.

The Outcome

If you decide to sell the property because you want to get your cash out -- such as because you inherited it and you need the money, not a second home -- speak with a local lawyer before you initiate a partition lawsuit. Make sure you understand all the potential pitfalls in your jurisdiction. If the court does order the sale of the property, you may not get top dollar. In some states, the judge can order the receiver to handle the sale through a real estate agency, but in others, the county sheriff sells the property, literally auctioning it from atop the courthouse steps. In Illinois, bidding generally starts at only two-thirds of its fair market value. After the sale, the court will divide the proceeds between you and your co-owner, taking into consideration all financial contributions made to the property by each of you.

About the Author

Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.

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