Partition: What It’s All About

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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


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.


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


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 A?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.


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.


Oral Partition Agreements

Just as an oral agreement not to sell to anyone other than a co-tenant is void as against the statute of frauds, an oral agreement to partition real property, absent more, is voidable if not outright void. Oral agreements to sell, even with part performance and permitted use, are not typically the basis for a successful partition action.


Properties Subject to Partition

Generally, an action in partition is considered to be an in rem claim brought against the land, and its putative owners and occupiers. The judgment of a court is limited to the property described in the complaint (and not other interests that the parties may share). The root of a partition complaint is divisibility of real property, or compensation for what the divided interest is worth.


Partition of Joint Tenancy in NY

A joint tenancy, sometimes referred to as a joint tenancy with right of survivorship, not as a tenancy in common, is subject to partition at the will of the parties. RPAPL A?901. Because property is owned as a joint tenancy, the interests of the parties are identical to their ratable share. On the death of one of two joint tenants, the survivor succeeds to the whole of the interest (eliminating the need for partition). Where there are multiple joint tenants, the death of one tenant does not obviate the need for partition, should it exist in the first place. As the Court of Appeals put it a century ago, action for a partition "may be brought authority to try and determine all disputes which may arise between a plaintiff and his co-tenants involving their respective titles and right of possession to the property."


Partition of Tenancy in Common

Although at one time it was thought to be discretionary, for more than 150 years, "partition between tenants in common of real property, in this state, is a matter of right, by the common law as well as by the statute, where both parties cannot, or either of them will not, consent to hold and use such property in common." That succinctly describes the principal, though it does not necessarily guarantee a sale of the parcel, since the statute permits monetary compensation in certain instances.


Tenancy by the Entirety (and After Divorce)

A tenancy by the entirety is the fictionalized view a husband and wife cannot have their property divided, since the marital unit is indivisible. RPAPL precludes tenancies by the entirety from being the subject of a partition action, however, where a husband and wife (identified in that capacity) take as joint tenants, not as a tenancy by the entirety, the property is subject to partition. Divorced spouses. By the very same reason that a tenancy by the entirety may not be challenged (the indivisibility of the marriage) in a partition action is precisely the reason why property held by divorced spouses is the subject of a partition action. It should be noted, however, that where the parties have agreed by contract that the property will not be divided, or that one party is entitled to its exclusive use and enjoyment, the courts will not interfere with the contract right, and there shall be no partition.

Additional Resources

Williston on Contracts, §490 (3d edition). Powell on Real Property ¶610.\ Tiffany A Treatise on the Modern Law of Real Property, sec. 175 (1912). 31 Hen. VIII Ch. 1 (1539) and 32 Hen. VIII Ch. 32 (1540). Ganz & Irwin, The 90 Second LAwyer (Wiley, (1998)

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