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A partition is the division of property that is jointly held by property owners.  If a property is divided among co-owners, every person who is a member of the joint ownership becomes sole owner of his/her portion of the property.  The divided portion of the property gains a new title and each shareholder has to give up his/her rights in the whole interest in favor of other sharers.  Therefore, a partition results in the surrender and transfer of certain rights in an estate.

A partition can be done voluntarily or by the judiciary.  When all the owners of an estate agree to the division of the property, it will constitute a voluntary partition.  However, if there is no voluntary partition, a partition action can be brought to divide the property in individual shares among the joint owners.

In a partition action, general regulatory rules applicable in pleadings in civil actions are applicable[i].  A complaint is considered sufficient in an equitable or statutory partition action if a proper cause of action is provided[ii].  The right of a co-owner to demand a partition of the property which he holds in common with another is absolute.  If a complaint makes it clear that a plaintiff is a joint owner of a property with the defendants and the plaintiff wants a partition of the property it will constitute a proper cause of action[iii].  To state a claim of partition, a plaintiff should claim for a money judgment or a portion of the real property.

Generally, to initiate a partition action, a plaintiff should file a petition for partition.  However, complaints are also considered sufficient to start a partition action.  The complaint should provide a correct legal description of the property, its situation, and the interest of each of the parties.  A legal description is not required in situations where: 1) the general location was set out, 2) the deeds were alleged to be in the possession of the defendant, 3) the defendant refused to aid the complainant in securing a description, or 4) discovery was invoked.  Courts can correct mistakes made in the description of the land that is sought to be partitioned[iv].

The complaint or petition should make it clear that the parties to the action are joint owners of the property[v].  The plaintiff should also explain the interest in the property[vi].  In some states, the plaintiff should only allege that the parties are co-owners in a property with an undivided interest[vii].  It is not required that the title of the person be formally described.  In some states, the plaintiff need not specify the shares of other owners.  But in some other states, the plaintiff should provide all facts that are necessary.  The interests of co-owners and all who are affected by the partition should be clearly denoted.  However, plaintiffs can demand partition even if the other parties or their interests are not known.

Generally, in partition actions between heirs, administration of the decedent’s estate is not essential[viii].  However, when the period allowed for administration has not passed, the parties should state that there is no administration pending[ix].  In cases where a decedent’s estate is a part owner of the land to be partitioned, the will of the decedent should be probated at the same time as partition proceedings takes place.  Where there are after born heirs who have rights to the estate as well, a petition for partition is sufficient to determine the name of the executor of the estate rather than all of the individual heirs[x].  This is because determination of the heirs and their proportionate shares of the estate are for the probate court.

Courts cannot partition a property without the consent of every owner.  However, if the property is incapable of being equitably partitioned or divided in kind, courts can decide on partition even without the consent of all the co-owners.  There need not be reasons to show why a property cannot be sold.  If a premise cannot be divided without prejudice, courts can decide on selling the property for partition[xi].

A defense in a partition action is set up in the form of an answer by the defendants.  There should not be any separate claim in the answer.  All objections to jurisdiction and process can be set up in the answer.  All the merits can also be responded to in the answer[xii].  A denial of a plaintiff’s interest in the property can also be provided in the answer.  When a defendant’s title is challenged in a partition petition, the defendant should adjoin the instrument that proves his/her title on the property.  When partition is requested by a sale, the defendant should request to make it partition in kind.  A sham answer is one that is good on its face but false in fact[xiii].

Defendants in a partition action can provide counterclaims to recover personal judgments on separate and independent matters.  Counterclaims can include relief in excess of what is provided in a complaint[xiv].  Marital separation arrears can also be provided in counterclaims.  Generally, a counterclaim or other affirmative response is not required in a partition suit.  However, in order to fully adjudicate the controversy between the parties, it can be considered necessary.

Generally, when a partition petition consists of a prayer for general relief, all relief that is consistent with the facts of a case can be provided by the courts.  Courts also consider all the improvements made on the property by any co-owner.  Before a decree of partition is made, the courts should hear claims for improvements made on the property.  Such claims should be asserted in the pleadings.  Claims regarding contribution of payment of taxes and discharge of liens over the property can be asserted in the pleadings[xv].  Co-tenants should also assert claims regarding adjustment of rents or profits in a partition action as proper allegations in pleadings.  Matters regarding wastes committed in the property should also be provided in the pleadings.  However, a specific demand is not necessary because a claim for accounting is incidental in a partition action[xvi].

[i] Thomas v. Southwestern Settlement & Development Co., 132 Tex. 413 (Tex. 1939).

[ii] Sims v. Sims, 122 N.M. 618 (N.M. 1996).

[iii] Succession of Fontenot v. Demaret, 185 So. 2d 861 (La.App. 3 Cir. 1966).

[iv] Vandall v. Casto, 81 W. Va. 76 (W. Va. 1917).

[v] Etheredge v. Etheredge, 219 Ala. 660 (Ala. 1929).

[vi] LEG Investments v. Boxler, 183 Cal. App. 4th 484 (Cal. App. 3d Dist. 2010).

[vii] State ex rel. State Park Bd. v. Tate, 365 Mo. 1213 (Mo. 1956).

[viii] Hunnicutt v. Rogers, 135 Ga. 595 (Ga. 1911).

[ix] Southwestern Engraving Co. v. Hansen, 72 S.W.2d 344 (Tex. Civ. App. 1934).

[x] Coulam v. Doull, 133 U.S. 216 (U.S. 1890).

[xi] Steadman v. Uptown Motors, Inc., 842 So. 2d 684 (Ala. Civ. App. 2002).

[xii] United States v. Errigo, 2009 U.S. Dist. LEXIS 3932 ( E.D. Mich. 2009).

[xiii] Gostorfs v. Taafe, McCahill & Co., 18 Cal. 385 (Cal. 1861).

[xiv] Toth v. Estate of Klein, 27 Ohio Misc. 37 (Ohio Mun. Ct. 1971).

[xv] Ukase Inv. Co. v. Smith, 92 Ore. 337 (Or. 1919).

[xvi] Willmon v. Koyer, 168 Cal. 369 (Cal. 1914).

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