Also known as: partition remedy · partition · partition action · partition in kind
Written by attorneys · grounded in primary & secondary sources — see below
A judicial remedy by which a co-tenant may compel division of property held in concurrent ownership. The remedy permits either physical division of the land into separate parcels or a court-ordered sale with division of the proceeds when physical division is impractical.
Rajesh Rao and Rebecca Ross hold a suburban research facility as tenants in common in fee simple conditional estates. Market shifts prompt Rajesh to liquidate his share. He petitions the court for partition. The court recognizes his power to compel division of the property over Rebecca's objection.
Ralph Richardson and Ruby Rivera own a single warehouse lot in an arts district subject to strict floor-area-ratio zoning. Ralph seeks physical division into separate parcels for independent production use. The layout and zoning rules make any resulting parcels unusable. The court orders a judicial sale instead and divides the proceeds.
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Raymond Ramos and Ryan Roberts own an estate as tenants in common. Raymond alone attempts to burden the land with a restrictive covenant. The attempt creates no servitude against Ryan. On later partition the court treats the attempt as a basis for enforcing the restriction against Raymond's share.
Redwood Bank serves as trustee of a trust holding commercial real estate with multiple beneficiaries. The trustee determines that exchanging a portion of the land for adjacent parcels will improve overall value. The trustee executes the exchange under its statutory authority to partition trust property.
Rebecca Ross and Ralph Richardson hold warehouse property under a deed containing a ten-year contractual bar on partition to support joint freight operations. Market changes later prompt Rebecca to seek immediate sale. The court upholds the restraint because it was created for a reasonable time only.
Ruby Rivera owns a unit in a condominium subject to recorded covenants. She seeks judicial partition to sever her interest from the common elements. The association enforces the governing documents that limit unilateral partition rights. The court denies the petition because the covenants validly restrict the remedy.
A court prefers partition in kind but may order sale when physical division is impractical due to the land's characteristics or external legal constraints such as zoning. The test focuses on whether a fair and equitable physical division can be made without rendering parcels unusable.
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A restraint on the power to compel partition that lasts for a reasonable time only is valid. Courts assess reasonableness at the time of creation based on the purpose of the agreement rather than later market changes.
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The holder possesses the same power to compel partition as an owner of a fee simple absolute during the measuring life. The estate functions like a fee simple for purposes of the remedy even though future interests remain protected.
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The attempt creates no servitude against nonjoining owners but may supply the basis for later enforcement on partition of the estate. Rights become enforceable against those who participated in the attempt.
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…far exceeds the total income. The Indians and the Indian Service personnel are thus trapped in a meaningless system of minute partition in which all thought of the possible use of land to satisfy human needs is lost in a mathematical haze of bookkeeping." 78 Cong. Rec. 11728 (1934). In 1934, in response to arguments such…