Voluntary Partition

A voluntary partition is a partition made by owners of joint property by mutual consent.  They divide the property by agreement among themselves.  Each owner is conveyed his/her share in the property by other co-owners.

The co-owners may effect voluntary partition in any manner they agree upon.  It can be effected by written agreements or mutual deeds or oral agreement.

Usually, a voluntary partition is effected by mutual conveyance or release executed by all owners.  A written agreement is valid and need not be formalized by a deed.  However, a voluntary partition may also be effected by mutual deeds that are binding contracts[i].  These deeds are subject to the general rules of construction of a contract[ii].  They should be constructed with regard to the circumstances leading to their execution.

Usually, a voluntary partition is presumed to be valid.  Courts will presume that all co-owners would have received their proper share in the property in kind or cash, unless proved to the contrary[iii].  A court will interfere with voluntary partitions only when rights of other parties have been affected.  A voluntary partition has to be on the basis of agreement between all co-owners.  It must not be a unilateral decision.  The parties to a voluntary partition may agree to a payment of owelty, a payment made in order to compensate an unequal partition.

Where only certain parts of a parcel of land are voluntarily partitioned, it is to be made evident while making partition.  Otherwise a court will presume that the parties intended a partition of a whole parcel of land[iv].

Generally, community property held by spouses cannot be partitioned between spouses[v].  Voluntary partition of community property is considered as against public policy because it contravenes the concept of descent.  But there are certain jurisdictions that give the liberty to spouses to partition community property.

Courts usually uphold voluntary partition conducted by spouses pursuant to separation between them.  Agreements entered after marriage with regard to partition are also sometimes upheld.  However, subsequent reconciliation by spouses after a separation will nullify an agreement to partition made as part of a separation agreement[vi].

Generally, mutual agreement between or among the co-owners is adequate consideration in a voluntary partition.  This is because each co-owner is sure to get his/her share of property independent of his/her use, in cash or kind.  But it has also been held by some courts that mere partition of land without any consideration does not create any new title.

A voluntary partition may be made by oral agreements also.  All co-owners have to participate in an oral partition agreement and be capable of joining in it.  Otherwise it will be held invalid.  Specific and clear proof of an oral agreement has to be presented to entitle a party to claim specific performance of an oral agreement.

If a co-owner takes possession of his/her severed share as part performance of an oral agreement of partition, it may be upheld in equity.  But, such partition should be apparently fair and equitable.  It can be presumed that an oral agreement exists if an oral agreement is clearly or evidently fair.  Taking of possession may also be presumed as evidence of the fact of partition.

A partition by oral agreement may or may not come within the statute of frauds depending on the statutes of various states[vii].  An oral partition within the statute of frauds is invalid and unenforceable.  Some states statutorily require that a partition is to be made by a deed.

An oral agreement of partition which is clear and specific in its terms, where a co-owner acts in pursuance of that agreement and the acts have proceeded to an extent that, refusing full execution would act as a fraud on the party seeking its enforcement will be outside the statute of frauds.[viii].  However it has also been held that part performance will not take an oral partition outside the statute of frauds.

A partition may only be questioned by the parties to the partition.  An insurance company cannot challenge a partition on the allegation that the insured property was in the sole ownership of the insured.

A party who takes possession of his/her share of property is estopped from claiming right as a co-owner[ix].  For an oral voluntary partition to be valid and effective, it has to be executed by the co-owners taking possession of their respective shares.  In some cases, the contrary view is also seen adopted and it has also been held that possession of the separated parts is not necessary to make an oral partition valid[x].

In addition to possession, making improvements to a property is valid evidence to prove an oral partition.  This is due to the fact that making improvements may be attributed to independent ownership of lands occupied exclusively after the voluntary partition.  But, it is not a necessary element to prove oral partition.

Generally, an oral partition does not vest legal title in the parties privy to it.  It passes an equitable title of the property to the property owners.  In some states, equitable title along with possession is sufficient to sustain ownership and an action for ejectment[xi].  It is not essential that a person claiming an equitable title must establish a right to legal title before instituting such suit for ejectment.

[i] Martin v. Uvalde Sav. & Loan Asso, 773 S.W.2d 808 (Tex. App. San Antonio 1989).

[ii] Cheramie v. Cheramie, 380 So. 2d 166 (La.App. 1 Cir. 1979).

[iii] Marcello v. Marcello, 178 So. 2d 416 (La.App. 1 Cir. 1965).

[iv] Van Winkle v. Van Winkle, 184 N.Y. 193 (N.Y. 1906).

[v] Pevehouse v. Lubbock Nat’l Bank, 79 S.W.2d 1107 (Tex. Civ. App. 1935).

[vi] McDonald v. Stevenson, 245 S.W. 777 (Tex. Civ. App. 1922).

[vii] Ruggles v. Ruggles Family L.P., 2007 Ohio 5889 (Ohio Ct. App., Huron County Nov. 2, 2007).

[viii] Dunis v. Director, 121 Ore. 500 (Or. 1927).

[ix] Murray v. Murray, 62 Ind. App. 132 (Ind. Ct. App. 1916).

[x] Zanderson v. Sullivan, 91 Tex. 499 (Tex. 1898).

[xi] Kingsnorth v. Baker, 213 Mich. 294 (Mich. 1921).


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