Partition Action: A way to Cure Property Dispute -
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Partition Action: A way to Cure Property Dispute

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Partition action is filed by one or more co-owners to divide property under the interests of the owners. Segregation is most commonly sought as part of a divorce case but is available to any co-owner.

Partition is a remedy that’s usually favoured by courts, for the sake of maintaining peace between the parties.

In connection with segregation, the parties seek to resolve all disputes concerning the property. The court is usually asked to order an accounting so that the financial contributions of the owners to the property can be “balanced” with the proceeds of the sale. If the property is subject to division, like a large parcel of land, the court will divide the property and award portions of it to each owner.

Types of Partition Actions

There are two mains types of legal way of division of land.

First, a partition in kind, also known as an “actual division,” severs the individual interest of each joint owner of the land. Each owner ends up controlling an individual, divided portion of the property.

This is the most common type of division and tends to be easiest when the parties get along, but simply disagree about the best use of the land, and also where the land is easily divided into discrete portions. This will allow for a conscious uncoupling where each person takes a portion of the land as his or her own.

On the Contrary, a partition by sale, also known as separation by licitationor “succession,” is accomplished by selling the entire property or land and further dividing it among the owners. This type of partition is used when division through kind is difficult to perform or when the parties cannot agree.

Voluntary Partition vs. Judicial Partition

Co-owners may voluntarily agree to divide their ownership rights and subdivide the property or land. Such agreements are usually enforced unless they adversely affect the rights of another person or individual. If all owners don’t agree to the division, one owner may file a lawsuit asking the courts to compel segregation.

Unlike division through voluntary, court-ordered divisionor compulsory segregation can be defended against based on various legal principles, such as statutes of limitations, undue delay and public policy. In the same way, the court will decide the case based on various factors such as rights, titles and the interests of the parties to the suit.

Costs of the partition action

Costs of the partition action are shared by all of the owners which include the filing party’s attorney’s fees. If one of the owners objects to the partition case and file a civil lawsuit, his or her fees may also be paid if the court finds it appropriate.

Because division is intended to settle disputes between owners, defending owners rarely get their fees paid as part of the action because the defence does little to add in the process. If the land is sold by order of the court, the court may also order the fees, as well as costs, be paid from the proceeds of the sale.

If the both parties agree, the court might order a private sale and appoint a receiver to manage the sale of property or other proceedings other than a public auction. But, when the parties will not cooperate, a public auction sale is the statutory solution.

A co-owner can purchase the property or land at the public auction. If the co-owner purchases and there is a lien or claim against the property, the purchaser may request that the amount of the charge against the other owners’ interests be deducted from their share of the sale proceeds. If a mortgage holder purchases then the mortgage holder need only to pay the amount bid more than the mortgage holder’s debt.

Because these proceedings can involve an auction sale, they are likely to bring a top dollar or even market value for the property. Co-owners are usually better off cooperating. If the partition action is pursued, the attorney’s fees and costs are shared by all, and that still reduces funds available for sale. These cases are better settled then litigated, but when the parties cannot agree, the separation is a viable option to end ownership disputes.

Learn More About: Partition of Property between Co-owners

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