Also known as: partition by sale
Written by attorneys — see sources below.
A form of relief in a partition action by which a court orders the entire property sold and the proceeds divided among the co-tenants. Courts resort to this remedy when physical division of the land would be unfair or impracticable because of the property's characteristics or external legal constraints such as zoning rules that would render resulting parcels unusable.
Deanna Davenport and Doris Duffy own a rural parcel as tenants in common. Local zoning requires any subdivided lot to meet a minimum size that neither co-tenant's share would satisfy. Deanna sues for partition. The court orders division by sale because any physical split would produce parcels that violate zoning and cannot be used or built upon.
Derek Douglas and Daphne Doyle hold a single warehouse as tenants in common after their business partnership ends. The building contains one soundstage and shared recording facilities that cannot be split without destroying operational value. Derek seeks partition. The court orders division by sale because the physical layout and shared facilities make any in-kind division inequitable.
In January 1996, Marian Swanson and her husband executed quit claim deeds conveying future interests in two properties to their children, Kristin Schumacher and Terrence Swanson. One property was a homestead located in Babbitt, Minnesota, and the other was a cabin located on White Iron Lake in Lake County, Minnesota. The deeds created a life estate in the two properties for Marian and reserved undivided one-half remainder interests for each of the children. Marian's husband died on October 20, 2007. On November 9, 2012, Kristin Schumacher and her then-husband conveyed their one-half remainder interests back to Marian through quit claim deeds recorded that day. After receiving the remainder interests, Marian brought an action for partition against Terrence. Terrence moved for summary judgment, and the major issue at the hearing was whether Marian could bring a partition action depending on how the district court classified her property interests. The district court denied Terrence's motion for summary judgment in all respects. The district court held a partition hearing. At the hearing, Marian argued for partition by sale because one property was a homestead that could not be partitioned in kind without great expense, and the other was a cabin that could not be divided because of lake-front and septic regulations. The district court found that partition by sale was appropriate. Terrence timely filed an appeal under Minn. Stat. § 558.215.
View caseA court orders division by sale when physical division would be unfair or impracticable. Physical characteristics of the land and external legal constraints such as zoning that would render separate parcels unusable justify a judicial sale.
Supporting sources
Yes. Courts continue to treat partition in kind as the preferred method, although practical considerations in most cases lead to division by sale instead.
The property is sold and the proceeds are divided among the co-tenants in proportion to their ownership interests.
…The plaintiffs originally asked, in the alternative, for a physical partition, but later moved for a judgment of partition by sale. : Such a partition is authorized by General Statutes § 52-495 which states: “PARTITION OF JOINT AND COMMON ESTATES. Courts having jurisdiction of actions for equitable relief may,…