Also known as:equitable partition action · equitable partition · partition action
Written by attorneys · grounded in primary & secondary sources — see below
A judicial proceeding available to joint tenants or tenants in common that terminates their concurrent ownership either by physically dividing the land among the owners or by ordering a sale and dividing the proceeds. Courts prefer physical division when it can be accomplished fairly and equitably.
Sources & Authorities
How it applies
Common Examples
2
Cell Tower Fall Zone Division
Eugene Ellsworth and Edward Everett own a hilltop parcel as tenants in common that contains a single cell tower and equipment building. Federal siting rules and local ordinances require a large fall zone covering almost the entire parcel, and no other structures may be placed within that zone. Edward files an action for partition and proposes giving Eugene the tower area and keeping the remaining land, which lies almost entirely within the restricted fall zone. The court orders a judicial sale because a fair physical division is infeasible under the external legal constraints.
Nonmarital Cohabitation Property
Elise Everly and Evelyn Ellison lived together for years and acquired a home through joint effort and common purpose without marrying. After their relationship ended, Elise files an equitable action of partition seeking division of the property. The court applies common-law partition principles to protect both parties' interests in the acquired asset and orders an appropriate division of the proceeds.
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Cases
Uniform Acts
Restatements
Casebooks
Watts v. Watts137 Wis. 2d 506, 405 N.W.2d 303 (1987)
Common questions
Frequently Asked
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Who may bring an equitable action of partition?+
Any joint tenant or tenant in common may bring the action to terminate concurrent ownership. Tenants by the entirety may not use it.
Supporting sources
When will a court order partition by sale instead of in kind?+
A court orders partition by sale when a fair and equitable physical division cannot be made. Physical characteristics of the land and external legal constraints such as zoning rules that render separate parcels unusable justify a judicial sale.
Supporting sources
Does a use restriction on the fee prevent a co-owner from seeking partition?+
No. Each co-owner who holds a present possessory fee interest may compel partition even when the fee is subject to a condition such as continued retail use.
Supporting sources
Can shoreline or zoning regulations affect whether partition in kind is feasible?+
Yes. Regulations that require minimum frontage, lot size, or unified infrastructure can make physical division inequitable, leading the court to order a sale instead.
Supporting sources
137 Wis. 2d 506, 405 N.W.2d 303 (1987)Property
…Metten v. Benge , 366 N.W.2d 577, 579-80 (Iowa 1985), in which the Iowa supreme court upheld the trial court’s application of equitable partition principals to settle a dispute over property by unmarried cohabitants. Second, as we have previously said, the defendant relying on Hewitt groups all of the plaintiffs claims together,…