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How to File a Partition Action: A Lawyer’s Guide for Co-Owners
Property disputes often begin with a minor disagreement but escalate over time. For instance, two business partners who purchased a property together for investment purposes may later clash over what to do with it.
When there’s no middle ground, one of the most common legal remedies is a partition action.
A partition action is a lawsuit filed in the county where the property is located, which allows co-owners to either divide the property or sell it and split the proceeds. Courts recognize a fundamental principle: no one should be forced to remain in co-ownership indefinitely. If the parties cannot agree voluntarily, the law provides a structured means of resolving the dispute.
In such a situation, it is advisable to consult legal experts. Specializing in partition actions and property partition sale rights, our lawyers can provide you with quality assistance at every step of the legal process. Rest assured, we strive for the best outcome for our clients.
Below is a detailed guide on how to file a partition action for co-owners. This guide will help you understand the partition process, including what to do before filing, how the case unfolds, the required documents, and what you can realistically expect once the case begins.
What exactly is a Partition Action?
In legal terms, partition is the division of real property among co-owners. The right to partition is recognized in nearly every state and codified in statutes. For example:
- Florida – Chapter 64 of the Florida Statutes governs partition.
- New York – Article 9 of the Real Property Actions and Proceedings Law (RPAPL) sets the rules.
- California – The Partition of Real Property Act introduced important updates, particularly for inherited property.
There are two primary methods of partition:
- Partition in Kind – The court physically divides the property into portions. This works best for farmland or large parcels.
- Partition by Sale – The property is sold, and the net proceeds are divided according to ownership shares. This is far more common in cities and suburbs, where dividing a single-family home or condominium isn’t practical.
Some states also allow a buyout option, particularly in cases of family inheritance. For example, under California’s updated law, heirs may have the chance to buy out the others before the property is sold to strangers.
Questions to Ask Before Filing
Jumping into litigation should not be the first step. Courts expect parties to at least attempt a resolution before resorting to a lawsuit. Before filing, consider these questions:
1. Do you actually have standing?
You must be on the deed or title. If you’ve only been paying expenses without legal ownership, you cannot file a partition action on your own.
2. Could this be resolved outside of court?
Ultimately, an amicable buyout or voluntary sale negotiation could save you from years of costly litigation. If there is still an issue, you should be able to get it resolved through negotiation.
3. Can you cover upfront costs?
Even though courts usually order costs to be reimbursed from sale proceeds, you’ll need to pay filing fees, attorney retainers, and appraisal costs in advance.
4. How will this affect relationships?
Partition actions are common among siblings and heirs. Be prepared: once you sue family members, the relationship may change permanently.
Practical example: Two brothers inherit a rental property. One wants to keep renting it out, the other wants to sell and cash out. They argue for two years, with one brother covering all taxes and repairs. Finally, the brother paying the expenses files for the partition. The court ultimately orders the sale, but also reimburses him for his contributions before splitting the balance.
Step-by-Step Filing Process
Here is a detailed explanation of the steps for filing a partition complaint. Take a look:
Step 1: Filing the Complaint
The process for litigation includes filing a complaint for partition with the court in the county where the property is located. This is not a one-page form; it’s a detailed legal pleading that must include:
- A legal description of the property (not just the address).
- Names of all co-owners and their respective shares.
- The statutory basis for the request.
- The type of partition requested (in kind or by sale).
Filing fees vary but typically range from several hundred dollars. In some states, additional surcharges apply for complex real estate cases.
Step 2: Serving the Other Owners
Once the complaint is filed, every co-owner must be served with notice. This is called service of process, and it’s not optional. Proper service ensures that each party has the opportunity to appear in court.
Methods of service include:
- Personal delivery by a process server.
- Certified mail with proof of receipt.
- Publication in a newspaper, if an owner cannot be located after diligent search efforts.
In the event a co-owner disregards the notice, the court may proceed and likely issue a default judgment, continuing without their participation.
Step 3: How Co-Owners Respond
Once served, the defendants (the other owners) can file an answer. This is where disputes surface. Common issues include:
- Shareholding – A deed may be created recognizing equal shares, but one individual may claim they contributed more finances and are entitled to more recognition.
- Reimbursements – Courts frequently modify final distributions to account for one owner paying streams of property taxes, monthly mortgage bills, or making repairs.
- Preferred result – One party may firmly believe the property can be divided in kind, while the other simply advocates for a sale.
Such conflicts are likely to significantly increase projected timelines in a case. A case can be settled relatively quickly, while other cases can take years.
Step 4: Appointment of a Referee or Commissioner
As a means to streamline the process, courts frequently appoint a referee, or, as some call, a commissioner. This individual examines the property, analyzes the documents, and proposes a reasonable settlement.
The referee may:
- Arrange for an appraisal.
- Calculate contributions (taxes, maintenance, improvements).
- Assess whether division in kind is a realistic option.
- Oversee the eventual sale if ordered.
The referee’s costs are treated as part of the case expenses and deducted from the property proceeds before distribution.
Step 5: The Court’s Decision
After reviewing the referee’s findings and hearing arguments, the judge will issue a decision. Outcomes generally fall into three categories:
- Partition in Kind – Property is physically divided into separate parcels. Example: a 200-acre farm split into two 100-acre tracts.
- Partition by Sale – Property is sold, either by auction or through a broker under court supervision. Example: a city townhouse listed for sale, and the proceeds are divided.
- Buyout – In states with modern statutes, one owner may purchase the others’ shares at fair market value.
Partition by sale is the most common outcome for residential real estate.
Step 6: Distribution of Proceeds
After a sale, the proceeds are not simply divided according to the percentages stated in the deed. The court first deducts costs and adjustments. Typically:
- Court costs, referee fees, and sale expenses.
- Attorney’s fees (sometimes shared among parties).
- Reimbursement for one party’s necessary payments (mortgage, taxes, major repairs).
The net proceeds are then allocated based on each owner’s share, after the described deductions have been made.
Example: Consider a house that sells for $600,000. Each of the two co-owners had paid $40,000 in property taxes, totaling $80,000. The court reimburses these tax payments, deducts $20,000 for legal and referee fees, and then divides the remaining balance evenly between the owners.
With many owners, each with their own rights regarding expense or contribution claims, and the surrounding property being in dispute, the legal process could easily stretch to two or more years.
How Long Does a Partition Action Take?
Timelines vary widely. A straightforward case with cooperative parties may be resolved in 6–9 months. But the partition action can provide a way out of a deadlock when co-owners cannot agree on what to do with the property.
The process is formal and, at times, a little sluggish, but ultimately, it is peaceful: either through the division of land or a sale, and the proceeds are distributed accordingly.
- Locating absentee co-owners.
- Disputes about contributions or ownership percentages.
- Court scheduling backlogs.
Difficulty selling unique properties (large estates, specialized commercial buildings).
Costs and Financial Realities
Partition actions are expensive. The filing party usually advances the initial costs, including:
- Court filing fees.
- Attorney retainers.
- Appraisal costs.
- Referee or commissioner fees.
Although courts generally order these costs to be reimbursed from the sale proceeds, plaintiffs must be prepared to cover them upfront.
Why Legal Representation Matters
While it is technically possible to represent yourself, partition cases are rarely straightforward. A single mistake in service, pleadings, or statutory procedure can cause months of delay.
An experienced partition attorney can:
- Properly draft and file the complaint.
- Identify all parties with a potential interest.
- Argue reimbursement claims.
- Negotiate buyouts where possible.
- Ensure the final judgment protects your share of the proceeds.
In many cases, legal fees are recoverable from the sale, meaning representation often pays for itself.
Schedule a Consultation with an Experienced Partition Attorney Today
Partition actions are powerful legal tools. If a partition action is something on your mind, legal consultation should be the first step, specifically with someone who deals with real estate litigation in your state. Laws differ; Florida’s process is not the same as New York’s, and recently enacted reforms in California have greatly changed the situation for heirs and families.
Although co-ownership doesn’t give rise to legal action, a partition action might be the only choice to proceed. Properly handled, it allows the discord to be transformed into an ending of one type to be replaced with an opening of a new type.
For more information or legal support, contact us. Schedule a consultation with our experienced partition attorney today. Discuss your case with our expert, and we’ll provide you with the best remedy.
