Also known as:actions for partition · partition action
Written by attorneys · grounded in primary & secondary sources — see below
A judicial proceeding by which any co-tenant may compel the division of commonly owned real or personal property. The proceeding prefers physical division of the property among the owners when that division can be accomplished fairly and equitably. When physical division is impracticable because of the land's characteristics or external legal constraints such as zoning or water-rights rules, the court may instead order a sale and division of the proceeds according to the owners' respective interests.
Sources & Authorities
How it applies
Common Examples
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Shoreline Regulations Block Division
Abigail Alvarez and Adam Anderson own a lakefront tract as tenants in common. Shoreline regulations require each buildable lot to have at least 150 feet of frontage and permanent road access, but the tract has only 260 feet of frontage and one narrow access strip. Abigail files an action for partition seeking separate parcels. The court determines that any physical split would leave at least one parcel noncompliant and unusable, so it orders a judicial sale of the entire tract and division of the proceeds.
Wind Turbines Prevent Physical Split
Aisha Ahmed and Alfred Ashford hold a ridgeline parcel as tenants in common that contains a continuous row of turbines feeding a single substation. County zoning requires minimum spacing between turbines and a unified interconnection. Aisha sues for partition and proposes carving off a grazing portion. The court finds that any physical division would violate the spacing and interconnection rules or render one parcel unusable, so it orders a sale of the entire tract with division of proceeds.
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Cases
Uniform Acts
Restatements
Casebooks
Study Supplements
Watts v. Watts137 Wis. 2d 506, 405 N.W.2d 303 (1987)
Common questions
Frequently Asked
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Who may bring an action for partition?+
Any co-tenant holding a present possessory interest in the property may bring the action. The right exists regardless of whether the other co-tenants consent and applies to both tenants in common and joint tenants.
Supporting sources
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 cannot be made. Physical characteristics of the land and external legal constraints such as zoning or water-rights regulations that would render separate parcels unusable justify a sale.
Supporting sources
Does a use restriction or condition on the fee prevent partition?+
No. A condition such as continued retail use does not strip co-owners of the right to seek partition. The court may still grant partition and determine whether in-kind division or sale is appropriate under the circumstances.
Supporting sources
Can zoning or siting rules affect the choice of partition remedy?+
Yes. Courts consider external legal constraints including zoning ordinances and fall-zone requirements when deciding whether partition in kind is feasible. When those constraints make any physical division inequitable or unlawful, the court may order a sale instead.
Supporting sources
137 Wis. 2d 506, 405 N.W.2d 303 (1987)Property
…Williams , 135 Wis. 253, 257, 115 N.W. 821, 128 Am. St. R. 1025 (1908) (courts of equity have general jurisdiction to maintain actions for partition of personalty and to provide any kind of relief necessary to do justice). Ch. 842, Stats. 1985-86, provides for partition of interests in real property. Sec. 842.02(1) states in relevant…