Also known as:partition in kind · partitioned by kind · partitioning by kind · partition in specie
Written by attorneys · grounded in primary & secondary sources — see below
A method of dividing co-owned real property into physically distinct parcels that are separately titled and allocated to each co-owner according to their interests.
Sources & Authorities
How it applies
Common Examples
2
Wetland Co-Owners Seek Division
Penelope Price and Portia Price hold a 50-acre reclaimed wetland as tenants in common subject to a recorded conservation easement that mandates the land function as one unbroken ecological unit. Penelope proposes splitting the parcel along an existing access road into two 25-acre segments. Because the easement and uniform wetland features prevent any physical division from preserving the required hydrology and habitat connectivity, the court declines partition by kind and instead orders a sale with division of proceeds.
Farm Siblings Request Physical Split
Pablo Perez and Priya Prasad inherit a 400-acre farm as joint tenants. The farm relies on a single authorized irrigation well that state regulations prohibit separating from the original unit. Pablo petitions for partition by kind into two 200-acre parcels with an access easement over the well. The indivisibility of the water rights under the regulations renders any physical division inequitable, so the court orders partition by sale rather than partition by kind.
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Cases
Uniform Acts
Restatements
Study Supplements
Schnell v. Schnell346 N.W.2d 713, 716 (N.D. 1984)
Common questions
Frequently Asked
3
When does a court prefer partition by kind over sale?+
Partition by kind is the preferred remedy because it allows each co-tenant to retain a physical share of the property. A court orders sale only when physical characteristics or external legal constraints such as zoning or conservation easements make a fair and equitable division impossible.
What factors does a court consider before ordering partition by kind?+
The court examines the physical features of the land including topography and uniformity as well as any legal restrictions that would render resulting parcels unusable. If these factors show that division would cause great prejudice to the co-tenants as a group, the court may deny partition by kind.
Can a court adjust values when ordering partition by kind?+
Yes. When ordering partition by kind the court may require one or more cotenants to make payments to others so that the combination of land and cash produces shares proportionate to each fractional interest.
436 A.2d 27Property
…and the appointment of a committee to conduct said partition. The trial court, after a hearing, concluded that a partition in kind could not be had without “material injury” to the respective rights of the parties, and therefore ordered that the property be sold at auction by a committee and that the proceeds be paid…