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A partition is the dividing of lands held by joint tenants into distinct portions so that they may hold them in severalty[i].  In a partition, co-ownership is converted into sole ownership[ii].  One gives up his/her right in the commonly owned thing for the right of the other in the thing s/he takes.

Thus, partition provides a method whereby two or more persons who own property together may put an end to the multiple ownership, so that each may own a separate portion of the property or, if a division in kind is not feasible, the property may be sold and each owner given an appropriate share of the proceeds[iii].  The right of partition is said to be an incident of common ownership.

The law generally favors partition to a great extent since partition results in the peaceful enjoyment of a property by its owner.  Partition also promotes industry and enterprise, and avoids compulsion of unwilling persons to use their property in common.

Another purpose for partition is that it helps in avoiding the inconvenience and disagreement arising from joint possession of property.  It also keeps away unreasonable restraints on the use and enjoyment of property and makes possible the transfer of title.

The fundamental objective in a partition action is to divide the property in a fair and equitable way and to not confer any unfair advantage on any co-tenant.

A partition may be[iv]:

  • judicial, or
  • voluntary.

A judicial partition is also called a compulsory partition.  A judicial partition is made when the co-owners do not agree to a voluntary partition.  Under such circumstances, a lawsuit to compel partition can be filed to sever property interests.

A voluntary partition is made when the co-owners divide the property among themselves by exchanging individual deeds.  Each co-owner owns a part of the property. They cease to have an undivided interest in the whole property.  The parties can also conduct a partition by sale of the property and divide the proceeds among themselves.

Generally, a court will award partition in a case where there is joint ownership of property and considerations of hardship, inconvenience, or difficulty do not affect the absolute right to partition.

A court may refuse to grant partition only in extreme cases where obvious injustice or fraud will result if partition is granted.  It may also be refused if there is an agreement waiving that right.  Partition may also not be granted if it is restricted either statutorily or by testament.

Three prerequisites are necessary to force a partition[v]:

  • the partitioners must be joint owners;
  • they must be joint owners of the land to be partitioned or some interest therein; and
  • the party seeking the partition must have an equal right to possess the land with the other joint owners.

Property can always be partitioned by consent of the owners.  Anyone who holds property in common with another can compel a partition of said property[vi]. Equitable considerations are generally not relevant in determining whether or not partition is proper.  However, equitable considerations should be a factor in determining the method of partition[vii].  A court of equity has jurisdiction to decree partition of personal property and, if partition in kind is not possible, to partition by sale.

There are two types of partition.  They are:

  • partition in kind; and
  • partition by sale.

Partition in kind is a form of partition in which a property is divided among co-owners.  Individual interests of owners in a property are severed in such a way that each owner can enjoy his/her share of the property free of others and can dispose of his/her share without any obstruction from others.  Partition in kind is also called an actual partition.

A partition by sale, also called a partition by licitation, is conducted only when a property cannot be physically divided into separate parts.  It can also be conducted when it is not profitable to divide a property because the total value of the divided property would become very low given the value of property as a whole[viii].  In this type of partition, a sale of joint property will be conducted and the proceeds from the sale will be divided among the co-owners[ix].

Certain jurisdictions provide for another type of partition called partition by allotment.  Partition by allotment may happen when an owner of a major share in a property objects in writing to any sale and requests that the property may be awarded to him/her at its valuation fixed by the court.

All property capable of being held in a co-tenancy is subject to partition by judicial proceedings[x].  Personal or real property including mineral rights such as interests created by oil, gas, or mineral lease or an oil or gas royalty may be partitioned[xi].

It is not the kind of interest which determines whether property can or cannot be partitioned but whether there is a co-tenancy and a right to possession of the property or interest.

Persons whose property may be subject to partition includes:

  • Co-tenant[xii].
  • Tenant in common[xiii].
  • Cohabitants[xiv].
  • Minor, when properly represented.
  • Guardian for a minor or incompetent[xv].
  • Mortgagor.
  • Heirs.

A co-tenant is entitled to partition as a matter of absolute right[xvi].  S/he need not assign any reason for his/her demand.  It is sufficient if s/he demands a severance and when grounds for a sale are duly established, it may be demanded as of right[xvii].  The only indispensable requirement to award a partition is that a clear title be shown.

A will prohibiting or postponing partition for a reasonable time or until the occurrence of a designated event is valid.  A court cannot order a partition contrary to the provisions of a will.  However, the right to partition can be restricted expressly or impliedly through a will.

A testamentary restriction on the right to partition cannot affect:

  • a party claiming under a statute allowing one to renounce the will;
  • a party taking an intestate share of the decedent’s estate; and
  • homestead or dowry exemptions.

[i] Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir. Ariz. 1974).

[ii] Amoco Production Co. v. Thompson, 516 So. 2d 376 (La.App. 1 Cir. 1987).

[iii] Miller v. Miller, 222 Kan. 317 (Kan. 1977).

[iv] O’Brien v. O’Brien, 89 Misc. 2d 433 (N.Y. Sup. Ct. 1976).

[v] First Nat’l Bank v. Texas Federal Sav. & Loan Asso., 628 S.W.2d 497 (Tex. App. Texarkana 1982).

[vi] Amoco Production Co. v. Thompson, 516 So. 2d 376 (La.App. 1 Cir. 1987).

[vii] De Mik V. Cargill, 1971 OK 61 (Okla. 1971).

[viii] Hegewald v. Neal, 20 Wn. App. 517 (Wash. Ct. App. 1978).

[ix] Hall v. Hamilton, 233 Kan. 880 (Kan. 1983).

[x] Witt v. Sheffer, 6 Kan. App. 2d 868 (Kan. Ct. App. 1981).

[xi] Mulsow v. Gerber Energy Corp., 237 Kan. 58 (Kan. 1985).

[xii] De Roulet v. Mitchel, 70 Cal. App. 2d 120 (Cal. App. 1945).

[xiii] Miller v. Miller, 222 Kan. 317 (Kan. 1977).

[xiv] Kohler v. Flynn, 493 N.W.2d 647 (N.D. 1992).

[xv] Hunt v. Rabitoay, 125 Mich. 137 (Mich. 1900).

[xvi] De Roulet v. Mitchel, 70 Cal. App. 2d 120 (Cal. App. 1945).

[xvii] Williams v. Williams, 255 Cal. App. 2d 648 (Cal. App. 2d Dist. 1967).

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