Nature and Purpose of Partition

Any person who possesses an undivided interest in a property may demand partition of the property.  A partition may be conducted by a court or otherwise upon agreement between the parties.  A property must be divided into separate parts in proportion to the interest of each owner in the property.

The right to a partition is an absolute right provided under law[i].  The right to partition is incident to joint ownership of a property.  In a suit for partition, the property involved has to be partitioned in a fair and equitable way and it will not confer any unfair advantage on any co-owner[ii].

Partition is conducted so that each owner may hold his/her property independent of other owners.

The law generally favors partition[iii].  This is due to the fact that it results in peaceful enjoyment of a property by its owner.  It also promotes industry and enterprise, and avoids compulsion of unwilling persons to use their property in common.

Another purpose of partition is that it helps in avoiding the inconvenience and disagreement arising from joint possession of property[iv].  It also avoids 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 suit for partition arises from a common title over a property and not due to a dispute in ownership of the property[v].  So a suit for partition may not be treated similar to a suit for declaration of title or possession.  A suit for partition is not a remedy for a dispute with regard to title.

The purpose of a person seeking partition is not relevant with regard to a partition.  A right to partition of property may not be a result of a contract[vi].

Generally, a court shall award partition in a case where there is joint ownership of property[vii].  Considerations of hardship, inconvenience, or difficulty do not affect the absolute right to partition.  But, a limitation to the right of partition may arise depending on the inherent qualities of a property to be subjected to partition.  Certain state statutes set a limitation in cases where property is situated in a way that partition can be made only with great prejudice to the owners of the property.

A court may refuse to grant partition only in extreme cases where obvious injustice or fraud will result if partition is granted.[viii].  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[ix] or by testament.  If a person had actual knowledge of a predecessor-in-interest’s waiver of the right of partition, s/he is precluded from the right to partition against co-owners of the property[x].

[i] Eisenberg v. Tuchman, 94 Conn. App. 364 (Conn. App. Ct. 2006).

[ii] Denton v. Lazenby, 255 Kan. 860 (Kan. 1994).

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

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

[v] Clark v. Roller, 199 U.S. 541 (U.S. 1905).

[vi] Hobbs v. Frazier, 56 Fla. 796 (Fla. 1908).

[vii] Sheets v. Simms, 36 Kan. App. 2d 361 (Kan. Ct. App. 2006).

[viii] Rose v. Hansell, 929 So. 2d 22 (Fla. Dist. Ct. App. 3d Dist. 2006).

[ix] Colo. Korean Ass’n v. Korean Senior Ass’n, 151 P.3d 626 (Colo. Ct. App. 2006).

[x] American Medical International, Inc. v. Feller, 59 Cal. App. 3d 1008 (Cal. App. 2d Dist. 1976).


Inside Nature and Purpose of Partition