Also known as:partition sale · forced sale partition
Written by attorneys · grounded in primary & secondary sources — see below
A judicial remedy available to co-tenants by which a court orders the sale of commonly owned real property and the division of sale proceeds among the owners. The remedy is available when a fair and equitable physical division of the land cannot be accomplished because of the property's physical characteristics or external legal constraints such as zoning rules that would render resulting parcels unusable or unbuildable.
Sources & Authorities
How it applies
Common Examples
2
Zoning Blocks Lakefront Division
Penelope Price and Portia Price own a lakefront tract as tenants in common. Shoreline regulations require each buildable lot to have at least 150 feet of frontage and road access, but the tract has only 260 feet of frontage and one narrow access strip. Penelope sues for partition. Because any physical split would leave at least one parcel noncompliant and unusable, the court orders a judicial sale of the entire tract and divides the proceeds according to the owners' interests.
Wind Farm Integration Prevents Split
High Ridge Wind LLC and rancher Maria Lopez own a narrow ridgeline tract as tenants in common. The tract holds a continuous row of turbines tied to one substation. Zoning requires minimum turbine spacing and a unified interconnection. Lopez seeks partition to carve off a grazing parcel. Because any physical division would violate zoning or destroy the integrated facility, the court orders a judicial sale of the entire tract and distributes the proceeds in proportion to the co-tenants' interests.
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Cases
Uniform Acts
Restatements
Casebooks
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Course Outlines
Study Supplements
Delfino v. Vealencis436 A.2d 27
Common questions
Frequently Asked
3
When will a court order partition by sale instead of partition in kind?+
A court orders partition by sale when a fair and equitable physical division of the property cannot be made. Physical characteristics of the land and external legal constraints such as zoning requirements that render separate parcels unusable or unbuildable justify the sale remedy.
Supporting sources
Does the preference for partition in kind prevent a sale when zoning blocks division?+
No. The preference for partition in kind yields when external legal constraints such as shoreline or energy zoning rules make any physical split produce at least one unusable parcel. In that situation the court orders a judicial sale and divides the proceeds.
Supporting sources
Can a co-tenant force partition by sale over the objection of another co-tenant?+
Yes. Any co-tenant holding a present possessory fee interest may compel partition. The court then determines whether partition in kind or by sale is the appropriate remedy based on whether a fair physical division is feasible.
Supporting sources
436 A.2d 27Property
…appeal, the defendant claims essentially that the trial court’s conclusion that the parties’ interests would best be served by a partition by sale is not supported by the findings of subordinate facts, and that the court improperly considered certain factors in arriving at that conclusion. In addition, the defendant directs a claim of…