Questions to Ask If You Are Considering a Partition Suit
Since a person usually cannot be forced into maintaining ownership of real property they do not want, the right of partition is absolute. Below are some of the questions you should ask yourself before bringing a partition suit.
- Do I have standing to bring a partition suit? – A partition suit can only be brought by a co-owner of real property, so let’s say that a parent has left you and your sibling their home through their will, but the executor is taking too long to transfer ownership of the property because they are residing in it. You and your sibling will not have standing to bring a partition suit until the title to the property has been transferred; however, it would be well within your beneficiary rights to sue the executor for fiduciary misconduct.
- Can the dispute be resolved in another way? – Co-owners who cannot agree on what to do with a piece of real property often negotiate outside of court to reach an agreement. A common approach is using mediation, which is led by a neutral third party who helps facilitate discussion between the parties involved to try and help them reach a settlement agreement. Mediation can be used even if a partition suit has already been filed.
- Do I have the money and time for a partition suit? – It is important to determine early on whether filing for a partition suit is an investment you are willing and able to make. There is a possibility that the judge will award you attorney’s fees and costs, but there’s also a possibility the amount due will come out of what you earn from the sale of the property.
- What do I want to be the outcome of the partition suit? – Be clear with your lawyer, in the complaint, and with the other co-owners about what you would like to happen with the property at issue.
- Am I willing to negotiate? – Perhaps you are inheriting a house with siblings. Are you willing to let your sibling who wants the home buy you out using other estate assets or trust fund distributions, or perhaps over time by adding interest to your payments?
- Does the property at issue qualify as heirs’ property? – Reforms to California partition laws were enacted January 1, 2022 that affect heirs’ property (i.e., property that was passed down to one or more co-owners by a relative and that has indications of familial ownership); these reforms will play a role in the way the court ultimately orders for heirs’ property to be partitioned.
- Have I consulted with a lawyer? – Completing partition action forms is in itself a challenge. Make it easier for yourself by bringing a lawyer onboard to help with the partition action process.
Devising a Strategy for How to Win a Partition Action
There is no one-size-fits-all strategy for winning a partition suit, which is why it’s so important for you to get clear on what you want to happen to the property at issue before the partition suit begins. Your idea of winning may not be the same as the other co-owners’ idea of winning.
If you are uncertain about what you are seeking out of a partition suit, a probate attorney can offer guidance and later help you craft a strategy for how to win the partition action.
What It Means to Win a Partition Suit
There is more than one way to win a partition suit, so how you go about “winning” will depend entirely on what you hope the partition suit to achieve. For instance, maybe you have inherited a home with relatives that you don’t wish to reside in but that you do wish to keep in the family. In this case, the goal of your partition suit may be to reach a deal with the other co-owners in which the property will not be sold but rented.
Here are some of the most common ways to win a partition suit:
- Getting bought out at a fair price. Perhaps you wish to terminate your interest in a property, but you are not opposed to one or more of the other co-owners buying out your share. So far, you have not been offered a price that you deem to be acceptable. Winning for you would entail a fair and equitable buyout agreement being reached.
- The property being sold on the open market. Perhaps the co-owner seeking to keep the property does not have the funds or credit to buy you out of your share. Winning for you would be the satisfaction of knowing that the property is being sold on the open market for fair market value, and not less.
- Getting a co-owner to move out of the property so it can be rented. Perhaps you merely want the property to generate an income. Winning for you would entail reaching an agreement where the current co-owner-resident of the property moves out so the property can be rented.
- Getting reimbursed for the funds you put into the property. Perhaps you’ve paid all the expenditures – taxes, mortgage, repairs, etc. – on a property that you’ve jointly inherited. Winning for you would at least partly entail reimbursement of all the payments you’ve made in relation to the property.
- Buying out the other co-owners for their proportional shares of the property. Perhaps the property that’s subject to a partition suit qualifies as heirs’ property. It carries sentimental value for you, so you do not want it being sold. The partitioning co-owners are asking for you to buy them out for an amount that exceeds the actual value of their shares of the property, so winning for you would entail being afforded the opportunity to buy them out for the actual value of their shares, since this would be your right under the 2022 reforms to partition law.
- Being given an undivided interest in the property. Perhaps the property in question can be fairly and equitably divided. For you, winning would be the judge ordering a partition by kind so you can have an undivided interest in the property, which you can maintain, sell or rent out.
Discuss what your intentions are for the partition suit with an estate and trust lawyer. You may find that the lawyer can assist with reaching a desirable resolution without the hassle and cost of a full-blown partition suit. It’s also advisable to consult with a lawyer if you are someone who is wondering how to stop a partition action.
Tips for How to Win a Partition Action
Regardless of whether or not you believe a partition suit will be needed to resolve your property dispute, it’s a good idea to heed the following advice when inheriting a piece of property with multiple people.
- Clearly communicate your desires. Determine exactly what you would like to happen with the property at issue and clearly communicate this desire to the other co-owners and your probate lawyer if you have one.
- Maintain thorough records. It is important to keep a file of all documents related to the property at issue (e.g., bills for repairs, taxes) if you hope to eventually be reimbursed. If you are trying to defend a partition suit on heirs’ property, be ready with documentation that confirms the familial heritage of the property, from whom it was passed down, and your relation to them.
- Be involved in negotiations. It is crucial you do not sit out any meetings or discussions among co-owners if you want a say in what happens with the property. Take detailed notes about what’s discussed in these meetings.
- Hire a qualified attorney. A will and trust attorney can help you navigate the process of inheriting real property with other people and later with bringing a partition suit if it becomes necessary to do so. An attorney can also help protect and enforce your ownership rights.
