Also known as: partition sales · partition-sale · partition by sale
Written by attorneys — see sources below.
A judicial remedy ordering the sale of co-owned real property with division of proceeds when a fair physical division among cotenants cannot be made. Physical characteristics of the land or external legal constraints such as zoning rules that render separate parcels unusable can justify the sale instead of partition in kind.
Priya Prasad and Pedro Pacheco hold a rural parcel as tenants in common. Local zoning requires minimum lot sizes that make any physical split unusable for building. The court orders a partition sale so the entire tract can be sold at auction and the proceeds divided according to their ownership shares.
Penelope Price and Perry Pratt hold a lakeside cabin as tenants in common after their life estates merge with remainders into fee simple. Physical division is impracticable due to the parcel's shape. The court orders a partition sale so the tract can be sold at auction and the proceeds divided according to ownership shares.
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 may order partition by sale when physical division would be unfair or impracticable because of the land's characteristics or legal constraints such as zoning that render separate parcels unusable.
Supporting sources
Yes. Joint tenants holding present possessory fee interests enjoy the same basic power to compel partition by sale as tenants in common. Shared facilities may affect the form of relief but do not eliminate the right.
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Yes. Long-term power purchase agreements or similar encumbrances do not bar a cotenant's right to seek partition by sale. Those facts may influence whether the court chooses sale over physical division but do not extinguish the power.
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Yes. Modern law treats a life-preserved fee tail as having the same practical incidents as a fee simple absolute for partition purposes. Cotenants may therefore seek a judicial sale.
Supporting sources
…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,…