Partition is a term used to refer to division of property among co-owners into separate portions. A co-owner of a property may demand partition of the property so that s/he may hold his/her share independently.
Generally, there are two types of partitions. They are:
- partition in kind; and
- partition by sale.
A partition in kind is a form of partition in which a property is divided among co-owners. The individual interests of owners in a property are severed in 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. A partition in kind is also called an actual partition. Usually, a partition in kind can be conducted easily only when it is possible to divide a property into plots of nearly equal value. In a partition of kind, there is normally no apparent injury to the parties due to partition[i].
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 pieces of the property would become very low compared to the value of property as a whole[ii]. 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[iii].
Partition by sale involves a forced sale of land in the sense that not all parties may be willing to sell. A partition by sale can be ordered in a condominium form of ownership when a partition in kind is not legally possible[iv].
Certain jurisdictions provide for another type of partition called partition by allotment. In a partition by allotment, a court awards complete ownership of land to a single owner or subset of owners directing them to pay the other owners an amount equivalent to the value of their interests in the property. A 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. A court may award the entire property to such a party objecting to sale subject to payment to other parties desiring partition. Payments due to other owners shall be charged as liens upon the property. The court will direct the time and manner of payments to be made to the other owners. A sum of money called owelty may be decreed by the court as part of a judgment of partition, towards compensation by one former joint owner to another when a partition results in an unequal division of land[v].
[i] Cain v. Christie, 1997 OK CIV APP 7 (Okla. Civ. App. 1997).
[ii] Hegewald v. Neal, 20 Wn. App. 517 (Wash. Ct. App. 1978).
[iii] Hall v. Hamilton, 233 Kan. 880 (Kan. 1983).
[iv] O’Connor v. Higgins, 1996 Conn. Super. LEXIS 2513 (Conn. Super. Ct. Sept. 24, 1996).
[v] Chesmore v. Chesmore, 1971 OK 49 (Okla. 1971).
