Also known as: suits for partition · partition suit · partition suits · partition action · action for partition
Written by attorneys · grounded in primary & secondary sources — see below
A legal action brought by a co-owner of property to compel division of the property among the owners. The court prefers physical division when feasible. A sale with division of proceeds occurs when physical division would be unfair or impossible due to the land's characteristics or legal constraints.
Solomon Silver and Sofia Stern own a single warehouse lot subject to zoning that bars subdivision below a minimum floor-area ratio. Solomon files a suit for partition seeking physical division into two parcels. The court orders a sale instead because any split would produce parcels too small to comply with zoning and thus unusable for their intended purpose.
Steven Silva and Samantha Stone purchased a home together while unmarried and hold title as tenants in common. After their relationship ends Steven files a suit for partition. The court applies ordinary partition principles and orders a sale with division of proceeds because the parties cannot agree on continued shared ownership.
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A court orders partition by sale when physical division would be unfair or impossible. Physical characteristics of the land and external legal constraints such as zoning rules that render separate parcels unusable justify a sale. The preference for in-kind partition yields when those barriers prevent an equitable division.
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A reasonable time-limited restraint on partition is enforceable. Co-tenants may agree or a donor may direct that partition be postponed for a defined period that serves a legitimate purpose such as completing a conservation program or protecting a financing arrangement. An unreasonable or perpetual restraint is invalid.
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One spouse cannot unilaterally compel partition of property held as tenants by the entirety during the marriage. The estate belongs to the marital unit as a single legal entity. Partition generally requires joint action or dissolution of the marriage.
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A suit for partition applies to nonmarital cohabitants who hold property as tenants in common. Courts apply ordinary partition principles to protect the interests of both parties in property acquired during the relationship.
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…for that purpose.” Sec. 820.01 thus states on its face that anyone owning property "in common” with someone else can maintain an action for partition of personal property held by the parties. This section codifies a remedy long recognized at common law. See Laing v. Williams , 135 Wis. 253, 257, 115 N.W. 821, 128 Am. St. R. 1025 (1908)…