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Partition

Any division of real property or Personal Property between co-owners, resulting in individual ownership of the interests of each.

The co-ownership of real and personal property can have many benefits to the parties. But when there is discord and the owners cannot agree on the use, improvement, or disposition of the property, all states have laws that permit the remedy of partition.

Most cases of partition involve real property. Persons can own property as tenants in common or joint tenants. As common owners of the property, they have equal rights in the use and enjoyment of the property. Partition statutes allow those who own property in common to sever their interests and take their individual share of the property.

Partition may be either voluntary or compulsory. Voluntary partition is when the cotenants (owners) divide the property themselves, usually by exchanging individual deeds. Each co-owner owns a part of the property and ceases to have an undivided interest in the whole. The parties can also provide for the sale of the property and divide the proceeds among themselves.

When the co-owners cannot agree on the value of the property and their rightful shares, they may select a disinterested third person, such as an arbitrator or an appraiser, to divide the property and to allot the shares. A voluntary partition by all the co-owners is legally effective unless there is a contractual challenge to its recognition. These challenges include allegations of Fraud or unconscionability, or the allegation that the parties are seeking to defraud a third party by agreeing to the partition.

When the co-owners cannot agree to a voluntary partition, a lawsuit to compel partition can be filed to sever property interests. Unless there are exceptional circumstances, a tenant in common or a joint tenant has the absolute right to seek a compulsory partition. Partition must be made even if every other owner objects to it. The motives of the party seeking partition are irrelevant, and the court that hears the lawsuit has no discretion to deny partition. Its main function is to determine the method of executing the partition. Commonly the court will order the property sold and the proceeds divided, instead of ordering a physical partition of the property. If the title to the property is put into issue, most states permit the court to resolve this issue as well as the partition.

Both real and personal property can be subject to compulsory partition. Real property that can be subject to partition includes a building, a story of a building, the land on which a building rests, or the surface of land where there is an oil or gas lease.

Similarly, personal property can be subjected to compulsory partition. The fact that the property is owned in unequal shares does not affect the partition. The right has been enforced with respect to a cashier's check payable jointly to those who share a Tenancy in Common, promissory notes, shares of stock in a corporation, and stocks of merchandise.

Further readings

Thomas, David A., ed. 1998. Thompson on Real Property. Charlottesville, Va.: LEXIS.

Cross-references

Joint Tenancy.

partition

n. 1) a lawsuit in which one co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other's half. Partition cases are common when co-owners differ on whether to sell, keep, or divide the property.

partition

a division of property, especially realty, among joint owners.

PARTITION, conveyancing. A deed of partition is, one by which lands held in joint tenancy, coparcenary, or in common, are divided into distinct portions, and allotted to the several parties, who take them in severalty.
     2. In the old deeds of partition, it was merely agreed that one should enjoy a particular part, and the other, another part, in severalty; but it is now the practice for the parties mutually to convey and assure to each other the different estates which they are to take in severalty, under the partition. Cruise Dig. t. 32, c. 6, s. 15.

PARTITION, ?states. The division which is made between several persons, of lands, tenements, or hereditaments, or of goods and chattels which belong to them as co-heirs or co-proprietors. The term is more technically applied to the division of real estate made between coparceners, tenants in common or joint tenants.
     2. The act of partition ascertains and fixes what each of the co- proprietors is entitled to have in severalty
     3. Partition is either voluntary, or involuntary, by compulsion. Voluntary partition is made by the owners of the estate, and by a conveyance or release of that part to each other which is to be held by him in severalty.
     4. Compulsory partition is made by virtue of special laws providing that remedy. "It is presumed," says Chancellor Kent, 4 Com. 360, "that the English statutes of 31 and 32 Henry VIII. have been generally reenacted and adopted in this country, and probably, with increased facilities for partition." In some states the courts of law have jurisdiction; the courts of equity have for a long time exercised jurisdiction in awarding partition. 1 Johns. Ch. R. 113; 1 Johns. Ch. R. 302; 4 Randolph's R. 493; State Eq. Rep. S. C. 106. In Massachusetts, the statute authorizes a partition to be effected by petition without writ. 15 Mass. R. 155; 2 Mass. Rep. 462. In Pennsylvania, intestates' estates, may be divided upon petition to the orphans' court. By the civil code of Louisiana, art. 1214, et seq., partition of a succession may be made. Vide, generally, Cruise's Dig. tit. 32, ch. 6, s. 1 5; Com. Dig. Pleader, 3 F; Id. Parcener, C; Id. vol. viii. Append. h.t. 16 Vin. Ab. 217; 1 Supp. to Yes. jr. 168, 171; Civ. Code of Louis. B. 3, t. 1, c. 8.
     5. Courts of equity exercise jurisdiction in cases of partition on various grounds, in cases of such complication of titles, when no adequate remedy can be had at law; 17 Ves. 551; 2 Freem. 26; but even in such cases the remedy in equity is more complete, for equity directs conveyances to be made, by which the title is more secure. "Partition at law, and in equity," says Lord Redesdale, "are very different things. The first operates by the judgment of a court of law, and delivering up possession in pursuance of it, which concludes all the parties to it. Partition in equity proceeds upon conveyances to be executed by the parties; and if the parties be not competent to execute the conveyance, the partition cannot be effectually had." 2 Sch. & Lef. 371. See 1 Hill. Ab. c. 55, where may be found an abstract of the laws of the several states on this subject.

References in classic literature ?
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We must not allow her to accept the part. She must not be left to her own complaisance.
The repentance of her lover at the Bath, and how brought by the just alarm of his fit of sickness to abandon her; the just caution given there against even the lawful intimacies of the dearest friends, and how unable they are to preserve the most solemn resolutions of virtue without divine assistance; these are parts which, to a just discernment, will appear to have more real beauty in them all the amorous chain of story which introduces it.
Her application to a sober life and industrious management at last in Virginia, with her transported spouse, is a story fruitful of instruction to all the unfortunate creatures who are obliged to seek their re-establishment abroad, whether by the misery of transportation or other disaster; letting them know that diligence and application have their due encouragement, even in the remotest parts of the world, and that no case can be so low, so despicable, or so empty of prospect, but that an unwearied industry will go a great way to deliver us from it, will in time raise the meanest creature to appear again the world, and give him a new case for his life.
Intimately as Miss Garth was acquainted with this peculiarity in her pupil, she now saw it asserting itself for the first time, in association with mental exertion of any kind on Magdalen's part. Feeling, therefore, some curiosity to know how long the combing and the studying had gone on together, she ventured on putting the question, first to the mistress; and (receiving no answer in that quarter) secondly to the maid.
"I have conceived the part of Lucy," she observed, with the demurest gravity.
I suspect, also, that some of the cases of compensation which have been advanced, and likewise some other facts, may be merged under a more general principle, namely, that natural selection is continually trying to economise in every part of the organisation.
Effects of external conditions -- Use and disuse, combined with natural selection; organs of flight and of vision -- Acclimatisation -- Correlation of growth -- Compensation and economy of growth -- False correlations -- Multiple, rudimentary, and lowly organised structures variable -- Parts developed in an unusual manner are highly variable: specific characters more variable than generic: secondary sexual characters variable -- Species of the same genus vary in an analogous manner -- Reversions to long lost characters -- Summary.
I afterwards scraped some off the paper, and found that it consisted of groups of little spheres in colourless cases, each of the thousandth part of an inch in diameter.
At first it appears rather surprising, that the trade-wind along the northern parts of Chile and on the coast of Peru, should blow in so very southerly a direction as it does; but when we reflect that the Cordillera, running in a north and south line, intercepts, like a great wall, the entire depth of the lower atmospheric current, we can easily see that the trade-wind must be drawn northward, following the line of mountains, towards the equatorial regions, and thus lose part of that easterly movement which it otherwise would have gained from the earth's rotation.
In England by the end of the fifteenth century they had been for the most part replaced by a kindred species which had long been growing up beside them, namely the Morality Plays.
The Morality Play probably arose in part from the desire of religious writers to teach the principles of Christian living in a more direct and compact fashion than was possible through the Bible stories of the Mysteries.