What is a partition?
Partition in Kind divides the property physically. Each of the property’s co-owners now physically owns that portion of the property individually, and there is no longer any joint ownership. This type of partition may be clear-cut but is often impossible given the property’s nature. For example, if co-owners share a single building or land use, laws like the California Subdivision Map Act prohibit the property’s physical split.
Partition by Sale is a good exit for co-owners who no longer want to share a property. In this type of partition, the entire property is sold, and the profits are divided equally among the co-owners. If there is a disagreement between co-owners on whether or not to sell, it is possible that the Court would order a partition by sale as a resolution. Of course, depending on your original agreement, co-owners may be given the first opportunity to buy the property or match offers for the same.
What is Absolute Right to Partition?
Partition is considered one of an individual’s “absolute” rights under the law. If you co-own something, you are entitled to your portion of that property or that portion’s proceeds. However, there are sometimes exceptions recognized by the courts, such as:
- Community property
- Agreement between co-owners, written or oral, for:
- Continued operation of a business on the land/property
- Occupation of the property as a primary residence for one co-owner
In these cases, co-owners may waive their right to partition. This can happen in a business context in which the co-owners still report to investors or divorce in which one spouse agrees to let the other occupy the property. The most important considerations are dependent upon your context, and the real estate lawyers at Moschetti Law Group can help you determine whether a partition is your best course of action and whether it should be “in-kind” or “by sale.” Contact Moschetti Law Group today to schedule a no-obligation strategy session to discuss your partition situation.
What is a Litigation Guarantee?
A litigation guarantee protects co-owners against any claims brought by parties not specified in the lawsuit in a partition action. This litigation guarantee provides details on all lien claimants and their order of priority. Any party who claims to the property, including lenders and lessees, must be named in the lawsuit, whether for partition or a quiet title. In this way, it guards the property owners against any further claims and transfers the responsibility for addressing those potential claims to the title insurance company.
Sometimes, owners and claimants can negotiate amongst themselves. However, lenders should always be contacted to maintain good standing despite possible disruptions to payments and understand how they fit into the partition or sale. An experienced real estate attorney can help ensure all necessary information is included and all interests are protected.
How does the Court apportion costs in an action for partition?
You may have seen the phrase “reasonable attorney’s fees” in real estate agreements and not thought much about them. But if it comes time to partition, this clause means that the Court may decide on, or “apportion,” those fees for you and your co-owner. Additionally, co-owners incur costs to maintain and renovate the shared property throughout their co-ownership, and any remaining debts due to these costs will also be apportioned. Finally, should the property be a rental property, the co-owners may be sharing the revenue from rent, an income that may continue to be shared even after partition.
What kinds of title issues can you help me with?
Moschetti Law Group’s experienced real estate attorneys can counsel you as owner or lender in title and partition actions. We have extensive experience in:
- Priority issues
- Property line disputes
- Notices of pendency
- Adverse possession claims
- Expert opinions in bad faith litigation
Owner and Property Status
- Bonafide purchaser and encumbrancer
- Equity analysis of mortgages, property liens, and subrogation
- Property conveyance negligence
- Survey and property description errors
- Diminution in value
- Real estate transfers under the Religious Corporations Law, membership agreements, partnerships, and not-for-profit corporations
- Lobbying efforts to resolve issues with prior governmental properties
- Mortgage fraud
- Fraudulent real estate conveyances
- Incorrect, invalid, and unrecorded mortgages, home equity lines of credit, and deeds