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 for fair disposition of real estate.
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.
Selected Statutes Governing Partition Actions
Persons can be compelled to partition their land:
Tenants in common, survivorship tenants, and coparceners, of any estate in lands, tenements, or hereditaments within the state, may be compelled to make or suffer partition thereof as provided in sections 5307.01 to 5307.25 of the Revised Code.
The content of the petition is governed by statute:
A person entitled to partition of an estate may file his petition therefor in the court of common pleas, setting forth the nature of his title, a pertinent description of the lands, tenements, or hereditaments of which partition is demanded, and naming each tenant in common, coparcener, or other person interested therein, as defendant.
The Court orders partition:
If the court of common pleas finds that the plaintiff in an action for partition has a legal right to any part of the estate, it shall order partition of the estate in favor of the plaintiff or all interested parties, appoint one suitable disinterested person to be the commissioner to make the partition, and issue a writ of partition. The court on its own motion may, and upon motion of a party or any other interested person shall, appoint one or two additional suitable persons to be commissioners. If the estate to be partitioned extends beyond the county in which the action is commenced, the court may appoint a separate commissioner or commissioners, not to exceed three, to make the partition of that portion of the estate located in the other county.
Survivorship tenants are treated as tenants in common:
If partition is granted among survivorship tenants, the court shall determine the share to which each is entitled as if the tenants were tenants in common.
Appointed commissioners equitably divide the land:
In making a partition, the commissioner or commissioners shall view and examine the estate and, on their oaths and having due regard to the improvements, situation, and quality of the different parts, set it apart in lots that will be most advantageous and equitable.
If the commissioner or commissioners set the estate apart in lots, it shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.
The Parties can agree to Partition the land amicably:
Before a writ of partition is issued under section 5307.04 of the Revised Code, the person of whom partition is demanded may appear in the court of common pleas in person or by attorney and consent to a partition of the estate agreeable to the prayer and facts set forth in the petition, which amicable partition, when made and recorded, shall be valid and binding between the parties to the partition. In cases in which a requested partition is consented to under this section and in all cases in which the lands are divided among the parties by the commissioner or commissioners, the court shall order the sheriff to execute and deliver a deed to each person entitled to a deed for the portion set off and assigned to the person. Land divided pursuant to this section shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.
If the property cannot be divided, it is appraised and a party may elect to take it at the appraised value:
When the commissioner or commissioners are of opinion that the estate cannot be divided according to the demand of the writ of partition without manifest injury to its value, the commissioner or commissioners shall return that fact to the court of common pleas with a just valuation of the estate. If the court approves the return and if one or more of the parties elects to take the estate at the appraised value, it shall be adjudged to them, upon their paying to the other parties their proportion of its appraised value, according to their respective rights, or securing it as provided in section 5307.10 of the Revised Code.
If the parties do not elect to take the property it can be sold at public auction:
If no party elects to take the estate, at the insistence of a party, the court of common pleas may order a sale of the estate at public auction by one of the following:
(A) The sheriff who executed the writ of partition or the sheriff’s successor in office;
(B) An auctioneer who is licensed under Chapter 4707. of the Revised Code and who is qualified under section 4707.021 of the Revised Code to conduct an auction of real property.
The sale is similar to a foreclosure sale, and cannot be sold for less than two thirds of the appraised value:
(A) A sale of an estate under section 5307.11 of the Revised Code shall be made as follows:
(1) If the sale is made by a sheriff, the sale shall be made at the door of the courthouse, unless for good cause the court of common pleas directs it to be made on the premises. The sale shall be conducted as upon execution, except that it is unnecessary to appraise the estate.
(2) If the sale is made by a licensed auctioneer, the sale shall be made pursuant to Chapter 4707 of the Revised Code.
(B) No property shall be sold for less than two thirds of the value returned by the commissioner or commissioners.
One party may obtain his or her share of rents and profits of the property received by the other party.
One tenant in common, or coparcener, may recover from another tenant in common, or coparcener, his share of rents and profits received by such tenant in common or coparcener from the estate, according to the justice and equity of the case. One coparcener may maintain an action of waste against another coparcener. No coparcener shall have any privileges over another coparcener, in any election, division, partition, or matter to be made or done, concerning lands which have descended.