All property capable of being held in co-tenancy is subject to partition by judicial proceedings[i]. 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[ii].
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.
For partition there must be unity of possession and each tenant must have a right to occupy the whole with co-tenants. However, it is not essential to the right of partition that the co-tenants should have estates that are equal.
Similarly, partition is available only when there are co-tenants with current possessory interests in the property[iii]. Hence a pending partition action to partition a property owned by joint tenants with right of survivorship will be interrupted by the death of one of the parties[iv].
Partitions are to be made in kind unless the property is indivisible by nature or cannot be conveniently divided[v]. Also, a suit for the partition of personal property can be maintained[vi].
A partition is an equitable proceeding, whether brought under statute or in equity[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.
Property subject to a life estate may be partitioned[viii]. If a life tenant is entitled to exclusive possession of any part of the premises subject to partition, a court may deny partition of that part or may direct partition subject to such exclusive right of possession.
Timber is a proper subject of partition[ix]. Also, when partitioning land that has improvements or timber, the partitioners, to be just and most beneficial to all owners, must consider the value of the timber or improvements[x].
In some jurisdictions, only estates authorized to be partitioned are estates which are coterminous and not successive[xi]. Co-tenants of a life estate may have a partition of their life estate which would not affect the remainder. Remaindermen and tenants in common may have a partition of the remainder subject to the life estate.
Equity has jurisdiction to make partition of the use of water between opposite riparian proprietors when necessary to secure an equal use or enjoyment in their rights[xii]. Similarly, leaseholds and easements are subject to partition.
Statutes expressly permit the admeasurement and setting off of any dower interest[xiii]. A wife has the right to claim a dower interest in the husband’s property. However, her interest will not affect partition since statutes gives a court the right to partition property in which a dower interest exists, even if the wife has not released her interest[xiv]. Since the wife’s interest attaches only to her husband’s share, on partition it will not reduce any amount which is due to a plaintiff.
A homestead is not subject to partition[xv]. Except for homestead property, the right to partition property is absolute[xvi]. A widow has a right to continue to occupy property as a homestead to the exclusion of others and the same is not subject to partition without her consent so long as she elects to so occupy it[xvii].
There may be partition or a sale for division when a surviving spouse abandons the homestead, in spite of the existence of minor children. However, the mere fact that a surviving spouse no longer lives on the homestead property does not mean that it has been abandoned so as to make partition proper.
[i] Witt v. Sheffer, 6 Kan. App. 2d 868 (Kan. Ct. App. 1981).
[ii] Mulsow v. Gerber Energy Corp., 237 Kan. 58 (Kan. 1985).
[iii] Treiber v. Citizens State Bank, 1999 ND 130 (N.D. 1999).
[iv] Worden v. Thornburg, 564 S.W.2d 480, 485 (Tex. Civ. App. Corpus Christi 1978).
[v] Belfour v. Corley, 217 So. 2d 679 (La.App. 3 Cir. 1969).
[vi] Killam v. Killam, 251 Ore. 59 (Or. 1968).
[vii] De Mik V. Cargill, 1971 OK 61 (Okla. 1971)
[viii] Weslowski v. Bonaddio, 1965 Pa. Dist. & Cnty. Dec. LEXIS 235 (Pa. C.P. 1965).
[ix] Aurelio v. Williams, 246 Ga. 428, 429 (Ga. 1980).
[x] Hart v. Hart, 245 Ga. App. 734 (Ga. Ct. App. 2000).
[xi] Duncan v. Duncan, 324 Mo. 167 (Mo. 1929).
[xii] Warren v. Westbrook Mfg. Co., 88 Me. 58 (Me. 1895).
[xiii] Duncan v. Duncan, 324 Mo. 167 (Mo. 1929).
[xiv] Beaton v. La Ford, 79 Mich. App. 373 (Mich. Ct. App. 1977).
[xv] Hammons v. Hammons, 300 Mo. 144 (Mo. 1923).
[xvi] Morris v. Figueroa, 830 So. 2d 692 (Miss. Ct. App. 2002).
[xvii] Ellis v. Patrick, 93 S.W.2d 1201 (Tex. Civ. App. 1936).