Also known as: partition sale · partition by sale · forced sale
Written by attorneys · grounded in primary & secondary sources — see below
A judicial remedy in which a court orders the sale of property held by co-tenants and divides the proceeds among them when physical division of the land is impractical or inequitable. Physical characteristics of the land and external legal constraints such as zoning requirements that render separate parcels unusable can justify the sale instead of division in kind.
Philip Powell and Perry Pratt own a single warehouse lot as tenants in common. Philip seeks partition. The arts-district zoning prohibits subdivision below a minimum floor-area ratio and the shared recording facilities cannot be split without destroying operational value. The court orders a judicial sale and divides the proceeds because no fair physical division is possible.
Pablo Perez and Paula Pierce hold property as tenants by the entirety. A federal tax lien attaches to Pablo's interest. After the government seeks to satisfy the lien, the court orders partition by sale of the whole parcel because the undivided nature of the interest prevents separate physical division and the lien enforcement requires liquidation of proceeds.
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Pavel Petrov and Peak Performance own adjacent parcels as tenants in common. The city initiates eminent domain proceedings that encompass both parcels. Because the integrated development plan makes physical division inequitable and the public-use determination requires unified sale, the court orders partition by sale with proceeds allocated according to ownership shares.
A court may order partition by sale when physical division of the property cannot be made fairly and equitably. Physical characteristics of the land and external legal constraints such as zoning that render separate parcels unusable justify the sale.
No. The power to compel partition by sale exists for holders of possessory estates even when contribution agreements recite perpetual dedication or promise not to sever. Equitable considerations may still affect whether the court grants the remedy.
Holders of fee simple conditional estates and fee tail estates possess the same power to compel partition by sale as fee simple absolute owners. The rule turns on the possessory character of the estate.
Zoning that prohibits subdivision below a minimum floor-area ratio can render any physical division unusable for the property's intended purpose. When the layout and legal constraints prevent fair division, the court orders partition by sale.
…appeal, the defendant claims essentially that the trial court’s conclusion that the parties’ interests would best be served by a partition by sale is not supported by the findings of subordinate facts, and that the court improperly considered certain factors in arriving at that conclusion. In addition, the defendant directs a claim of…