Imagine a situation where you and your siblings inherit a large tract of land from a relative. One sibling wants to live in the old farmhouse on the property, while the other siblings want to sell the land. Resolving this type of dispute involving jointly-owned real estate can be tricky – and may require litigation.
A partition action is a legal action where co-owners of property ask a court to intervene to settle a dispute over the real estate. When possible, a court may physically divide the property between co-owners. Otherwise, the property may be sold and the proceeds divided between owners. Our Denver civil litigation attorneys can help you understand your rights and represent you in a partition action.
Solutions Based Family Law offers high-quality legal representation to clients throughout the greater Denver area. We offer thoughtful, strategic advice and work with our clients to help them reach the best outcome for their unique situation. Reach out to our law offices today to schedule a consultation with a Denver family lawyer.
What Is a Partition Action?
In Colorado, partition is a legal action “ for the division and partition of real or personal property or interest therein…maintained by any person having an interest in such property.” While partition actions can be used for personal property (such as a jointly-owned piece of art or jewelry), they are most often used to settle disputes involving joint ownership of real property. This is because real property disputes usually involve larger amounts of money.
A partition action is not used to determine ownership in a piece of property or to resolve other property issues (such as nonpayment of rent or adverse possession). It is exclusively used in cases where two or more people co-own a piece of property and disagree about what to do with the property.
Partition actions can have two outcomes:
- Partition in Kind: The property is physically divided so that each co-owner receives a separate parcel of land or property. While this method is preferred under the law, it isn’t always possible. For example, if an unmarried couple owns a single-family home together, a court cannot divide it down the middle. A partition in kind is only a practical solution for larger tracts of land that can be split into separate parcels.
- Partition by Sale: When a property cannot be reasonably split into separate parts, the court may order the entire property to be sold. After the sale, the proceeds will be distributed among the co-owners based on their ownership interest. Outstanding debts or liens on the property usually have to be paid from the sale proceeds before owners receive their share.
When possible, judges will order the property to be divided among the co-owners. If division isn’t possible or would result in an unfair result, then the court can order a sale of the property. Courts have broad discretion to fairly distribute the property, pay off creditors, and take things like unequal contributions into account when deciding these cases.
In making a decision, a judge will examine the nature of the property and whether it can feasibly be divided. The court may also order an appraisal of the property to establish fair market value and examine each owner’s interests in the property. These steps will allow the court to make a determination based on what is both fair and practical for the situation.
Another alternative to filing a partition action is to negotiate a buyout of the property. Our Denver civil lawyers can help you draft an agreement that allows you to avoid litigation whenever possible. If the case does go to court, we will represent your interests and help you achieve the best possible outcome.
When Is a Partition Action Necessary?
Partition actions can arise in a number of different situations. Generally, they can occur whenever people jointly own property and have a disagreement about what to do with the property. Some common reasons for filing a partition action include:
- Family members inherit property together. One family member wants to keep the property in the family, while the other wants to sell and split the proceeds. If the family members can’t work out a buyout deal, then they might pursue a partition action to have the court decide the issue.
- A group of friends jointly owns a vacation rental property. After disagreements over management and profit distribution, one friend wants to sell the property. A partition action could be filed to obtain a court-ordered sale of the property, with the proceeds split among the friends according to their ownership interests.
- An unmarried couple buys a home together and separates several years later. They cannot agree on which partner should keep the property. A partition action can force a sale of the house if they cannot come to an agreement.
- Business partners own an office building together. When the business breaks up, one partner wants to keep the property, while the other wants to sell. If it isn’t feasible to divide the office building, then the court may order a sale of the property.
Notably, partition actions are not used in Colorado divorce cases. In a divorce, marital property will be divided according to Colorado’s domestic matters law. Our Denver family law attorneys can help you work through property division as part of your divorce proceedings.
How to File a Partition Action in Colorado
The decision to pursue a partition action is a weighty one. Even if you ultimately get the result that you want, it can be a costly and time-consuming process. However, if you can’t work out an agreement with the co-owners of the property, it may be the only way forward.
To start a partition action, one co-owner of the property must file a complaint in the District Court in the county where the property is located. The parties to a partition action must include all title owners. Typically, creditors, lenders, lienholders, and others with an interest in the property are also included in the lawsuit.
All parties to the action must be served with a copy of the complaint and a summons. The co-owners then have the opportunity to respond to the action. If they fail to do so, then the court could rule by default judgment in favor of the plaintiff (the party that filed the action).
If the court determines that a partition action is appropriate, it will appoint a commissioner to evaluate the property, recommend how it should be partitioned, and (where appropriate) oversee the sale of the property. The commissioner is usually an impartial attorney or real estate expert. The commissioner will assess the property and prepare a report for the court that details their findings and recommendations.
After receiving the commissioner’s report, the court will issue an order to either partition the property in kind (dividing the property) or partition it by sale. If the property is divided, then a new deed will be issued that reflects the new ownership. Otherwise, the proceeds of the sale will be distributed to the owners after any debts are paid.
Reach Out to Talk to Our Partition Lawyers
Whether you want to file a partition action or need to defend against one, having an experienced attorney by your side is crucial. Partition actions can be complex and require skilled legal representation. Our team can talk you through your options and help you negotiate a settlement or litigate the matter in court.
At Solutions Based Family Law, we represent clients in a range of civil litigation matters, including real estate disputes. We offer thoughtful, strategic legal advice that is designed to help our clients achieve their goals. To learn more or to schedule a consultation with a Denver partition attorney, give us a call at (866) 522-7959 or fill out our online contact form.