Breaking up any type of relationship can be difficult, but add the ownership of real estate to the mix and it can become even more troublesome. Domestic Relations Court has the ability to decide the equities and disposition of real estate between separating or divorcing spouses, but what about unmarried individuals? Where can they turn to resolve differences over the ownership and disposition of jointly owned real estate?
This has been a recurring problem that this firm has been called upon to resolve many times both in the heterosexual and same sex relationships. The issues are the same. If we are lucky enough to represent one of the parties prior to the acquisition of the real estate, we are able to make recommendations, such as the preparation of an agreement regarding the disposition of the real estate or the use of various legal entities to hold title. Unfortunately, more often than not, we are not representing one of the parties prior to ownership, and are presented with the problem when the break up is occurring between the joint owners.
Assuming everything else is equal, if the parties are in agreement, resolving it is likely to be easy. Resolution becomes a matter of dealing with the conveyance, any existing mortgage, and dividing of the equity in the property. However, with most breakups, agreement between the parties has long past. We then must determine the goals of each of the parties, and devise strategies to obtain the best outcome. When all else fails, litigation may be the course that needs to be followed.
The law can be slow in evolving to fit the circumstances that exist in present day society. That is the case with resolving disputes over unmarried joint owners. A Partition Action is a law suit which has its beginnings in the common law. It was used in the days that farms passed down from the farmer to his sons. When the sons could not agree on how to run the farm together, one or more of them could commence a partition action, asking the court to fairly divide the farm between the brothers.
Partition Action exists in the codified law of today. However, it is still cloaked in the garb of the common law, with a focus of dividing the farm amongst joint owners. Unfortunately, a Partition Action is like an old remedy for a new disease, and often does not work perfectly in the urban setting. That is, not unless you want the court to divide an urban house in half like in the movie War of the Roses, with Michael Douglas and Kathleen Turner.
A Partition Action can ask that the property be sold if it is determined that it cannot be divided. Certainly this is the usual case for a residential urban property. Each of the parties has an opportunity to purchase it for the appraised value. If neither elects to do so, the property is sold at auction.
We have utilized the Partition Action to force the issue with a recalcitrant party who refuses to act. The good news for the party seeking this remedy is that the court can award attorney fees to the Plaintiff who commences the action.
We find that each client’s case requires thought and analysis to develop the right strategy to seek the desired result. Often we will combine the Partition Action with other counts containing other legal theories. I analogize this to a chemotherapy cocktail to kill the specific strain of cancer. Clients going through this process with a terminating relationship seem to like this analogy for some reason.
A Partition Action should not be filed by a novice. A thorough understanding of the process, and the consequences and risks must be understood. Our experience is that the Court itself does not know or understand this type of case and must be educated through the process. Although there can never be a guarantee that it will happen in every case, the good news is that we have seen most parties coming to their senses when this action gets filed, and the differences are resolved.
FAQs
What happens when unmarried couples own real estate together and break up?
When unmarried individuals jointly own real estate and their relationship ends, the situation can quickly become complicated. Unlike married spouses, unmarried co‑owners cannot rely on Domestic Relations Court to divide property. Instead, disputes over ownership, equity, or sale of the property must be resolved through other legal means, often in civil court.
Does Domestic Relations Court have jurisdiction over unmarried couples’ real estate disputes?
No. Domestic Relations Court has authority to divide property only between married spouses as part of a divorce. When unmarried co‑owners separate, the court does not automatically have the power to determine who gets the property or how it should be sold or divided.
What legal options do unmarried property owners have if they cannot agree?
Unmarried joint owners generally have two options:
- Voluntary agreement – If both parties agree, they can decide how to divide equity, handle the mortgage, or transfer ownership.
- Litigation – If no agreement can be reached, one party may file a Partition Action to force a resolution through the court.
What is a Partition Action?
A Partition Action is a civil lawsuit that allows a joint owner of real estate to ask the court to divide or sell property when the owners cannot agree. This remedy has its roots in common law and is now governed by Ohio Revised Code Chapter 5307.
Who can file a Partition Action in Ohio?
In Ohio, tenants in common, survivorship tenants, and other joint owners may be compelled to partition property. Even survivorship tenants are treated as tenants in common for purposes of a Partition Action.
How does a Partition Action work?
Once a Partition Action is filed:
- The court determines whether the plaintiff has a legal ownership interest.
- The court appoints one or more commissioners to evaluate the property.
- The commissioners decide whether the property can be physically divided or must be sold.
- The court oversees the final disposition of the property based on fairness and equity.
Can the court physically divide a house?
In theory, yes—but in practice, no. While Partition Actions originated with farmland that could be divided into parcels, residential urban property usually cannot be divided without harming its value. As a result, courts typically order a sale rather than attempting a physical division.
What happens if the property cannot be divided?
If the commissioners determine that dividing the property would cause “manifest injury” to its value:
- The property is appraised
- Either party may elect to purchase the property at the appraised value
- The purchasing party must pay the other owner their proportional share
What if neither party wants to buy the property?
If neither owner elects to take the property:
- The court may order the property to be sold at public auction
- The sale is similar to a foreclosure sale
- The property cannot sell for less than two‑thirds of the appraised value
Can attorney fees be awarded in a Partition Action?
Yes. Ohio courts may award attorney fees to the party who files the Partition Action, particularly when the lawsuit is necessary to force a resolution with a recalcitrant or uncooperative co‑owner.
Can Partition Actions include other legal claims?
Yes. Partition Actions are often combined with additional legal theories, such as claims for reimbursement, unjust enrichment, rents and profits, or waste. Each case requires a strategic approach tailored to the specific facts and goals of the parties involved.
Can one co‑owner recover rental income from the other?
Yes. A co‑owner may recover their share of rents and profits received by the other owner, depending on what is fair and equitable under the circumstances. Ohio law also allows claims for waste if one co‑owner damages or misuses the property.
Is a Partition Action straightforward to file?
No. Partition Actions are procedurally complex and carry financial and strategic risks. Courts are often unfamiliar with these cases, requiring careful education and advocacy. This type of action should not be handled by a novice attorney.
Do Partition Actions often lead to settlement?
In our experience, yes. While litigation is sometimes necessary, filing a Partition Action frequently brings parties to the negotiating table. Once the legal consequences become clear, many disputes resolve before reaching a final court‑ordered sale.
How can an attorney help with co‑owned real estate disputes?
An experienced real estate attorney can:
- Evaluate ownership interests and equities
- Advise on negotiation versus litigation strategies
- File and manage a Partition Action
- Combine claims to protect your financial interests
- Work toward the most efficient and favorable resolution
When should you contact an attorney?
You should seek legal advice as soon as a dispute arises, especially if communication has broken down or one party refuses to cooperate. Early intervention can reduce costs, protect equity, and prevent unnecessary litigation.
Need Help With a Jointly Owned Property?
The attorneys at Joseph & Joseph & Hanna have extensive experience handling disputes involving jointly owned real estate between unmarried couples. Contact us to discuss your situation and explore your legal options.