Partition can be effected in one of two different ways. First is voluntary partition, where persons or entities that own property agree to divide ownership or value. Second is judicial partition, the consequence of a dispute that seeks either ownership or compensation.
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Partition: What It Does
Partition is the division of real property so that either compensation, or possession, is given to one or more owners of the property. With a common law history dating back centuries, and equitable proceedings dating back more than 450 years, partition proceedings have a history that is worthy of attention, and which can be put to good, strategic use for those seeking to avail themselves to the rights of ownership or possession in real property, or (most typically) in receiving the economic benefits from the sale of the parcel
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Historic Context
Partition is an ancient, equitable remedy that has been modernized by statute and is available either statutorily or voluntarily to someone claiming a divisible interest in real property which the parties own jointly, or in which one party, or another, has a legal interest that may be separated from the whole. Voluntary partition has existed for centuries and may be defined as the division of real property by the mutual consent of those having an interest in the real property. It may be done by deed, by agreement (sometimes oral or written), or by action. In the year 1540, the existing right to a writ of partition was extended to joint tenants and to tenants in common, and by the time of Elizabeth I, the court of chancery had begun to take jurisdiction of suits seeking partition.
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Voluntary Partition
All co-tenants must be bound for the voluntary partition to be effective. Generally, there is no statutory requirement to effect voluntary partition other than compliance with conveyance statutes and the statute of frauds, but caution should be utilized since there is a rich body of case law that has been spawned by voluntary partition that has not met the expectation of the parties. There are significant limitations imposed on the ability of an infant or incompetent to consent to the voluntarily partition of property, however, RPAPL 1651 permits a conservator or guardian to apply for voluntary partition. One peculiar aspect of New York law is Section 7 of the Indian Law, which deals with voluntary partition of certain communal, tribal property.FN9
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Judicial Partition (NY Example)
There are two basic statutes that are involved in a typical partition action, though sometimes a third may be necessary. Principally, the operative provisions are found in Article 9 of the (NY)Real Property Actions and Proceedings Law, together with Civil Practice Law and Rules. An ancillary statute that may be applicable is 28 USC §1399, which provides that in a civil action by any tenant in common or joint tenant where the United States is one of the tenants in common or joint tenant, the action may be brought only in the judicial district where the lands are located.
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Partition Agreements
There are typically three types of agreements that become involved in a partition proceeding: an oral agreement, a written agreement, or one which is a combination of the two. The first problem that any oral agreement must have is surviving a test under the statute of frauds, whose history dates back hundreds of years.
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