Persons Whose Property may be Subject to Partition

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[i].  The right of partition is said to be an incident of common ownership.

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

  • 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.

A co-tenant is entitled to partition as a matter of absolute right[iii].  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[iv].  The only indispensable requirement to award a partition is that a clear title be shown, and in no event a partition is denied since it will result in financial loss to the co-tenants[v].

However, the right of a co-tenant to partition property may be modified or waived by reason of an agreement, express or implied, permitting a variance from the ordinary incidents of such co-tenancy[vi].

A tenant in common is also entitled to partition as a matter of right[vii].  Such right, however, is subject to the full power of the court to make a just and equitable partition between the parties and to secure their respective interests.

When several persons hold real property as tenants in common, any one or more of them may maintain a suit for the partition of the real property according to the respective rights of the persons interested therein, and for a sale of all or a part of the property if it appears that a partition cannot be had without great prejudice to the owner[viii].

The general rule is that cohabitants may bring an action for partition of their property where their intention was clearly to own their property jointly[ix].  On the other hand, mere cohabitation is not enough to support a right to partition in the absence of actual joint ownership.  If live-in companions intend to share property, they should express that intention in writing.

Purchasers and sellers under executory land contracts do not have an interest in real estate that may be subject to partition[x].  However, if the purchaser has a right to a conveyance, and insists on specific performance, the parties who are sellers no longer have an interest in the land and cannot insist on partition of the real estate[xi].  If the purchaser only demanded monetary damages for nonperformance, the sellers can seek its partition, and the property can be sold and the proceeds adjusted accordingly.

A successor to the interest of an original co-owner of real property can fare no better in partition against another original co-owner than the transferring co-owner[xii].

Partition is available between a tenant in fee of one undivided interest and a tenant for life or years in another.  A voluntary partition made between a tenant in fee and a tenant for life is binding only during the continuance of the particular estate; that is, the estate for life[xiii].

The life tenant and the reversioner or remainderman are not joint owners or tenants in common, and neither can maintain a judicial proceeding against the other for a sale of the property for a division and distribution of the proceeds of the sale[xiv].

However, a part owner of the estate for life and the owner of the reversion or remainder who also is a part owner of the estate for life are joint owners or tenants in common and each may maintain an action against the other for a sale for a division and distribution of the proceeds.

Lessees and royalty owners are not co-owners of the land, and they are not proper and necessary parties to a suit to partition[xv].  But a minor, when properly represented, may be a plaintiff in a compulsory partition proceeding, in the absence of a statutory prohibition.

The partition of lands by a guardian for a minor or incompetent is allowed by the courts, if no advantage is taken and the partition is equal.  A guardian may divide the real estate in as full and ample a manner as the person with a mental illness might or could were they restored to the full use of their rational faculties[xvi].

A mortgagor of an individual interest in real property who is in possession of the property has the right to compel partition, with the resulting partitioned property still mortgaged.  Similarly, a judgment creditor’s right to partition is affected by statutes exempting certain of the debtor’s property interests from execution.

Heirs attain an undivided interest in a portion of the real property and on request of an heir, the courts partition the property without prejudice to the other interested heirs or devisees.  A beneficiary of a trust cannot maintain partition proceedings during the active existence of the trust[xvii].

Unless there is a statute or express authority from the testator, the executor or administrator of an estate does not have an interest in the real estate of the deceased as will entitle him to institute and maintain partition proceedings[xviii].

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

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

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

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

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

[vi] Terrible v. Terrible, 91 Nev. 279 (Nev. 1975).

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

[viii] Maupin v. Opie, 156 Ore. App. 52 (Or. Ct. App. 1998).

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

[x] Chandler v. Chandler, 64 Ill. App. 3d 97 (Ill. App. Ct. 3d Dist. 1978).

[xi] Dennis v. Silzer, 48 Ill. App. 3d 468 (Ill. App. Ct. 3d Dist. 1977).

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

[xiii] Teasley v. Hulme, 150 Ga. 495 (Ga. 1920).

[xiv] Duncan v. Johnson, 338 So. 2d 1243 (Ala. 1976).

[xv] Amerada Petroleum Corp. v. Reese, 195 La. 359 (La. 1940).

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

[xvii] Scheetz v. Tradesmens Nat’l Bank, 1935 Pa. Dist. & Cnty. Dec. LEXIS 99 (Pa. C.P. 1935).

[xviii] Calmese v. Weinstein, 234 Ark. 237 (Ark. 1961).


Inside Persons Whose Property may be Subject to Partition