When people own real property with no written agreement, the individuals will need to resolve any issues by agreement or filing a partition claim. If by agreement, then no court intervention is required. There are several types of documents that can memorialize the agreement between people to deal with their real property issues. For example, to name a few: a partnership agreement; joint sale agreement; or occupancy agreement. The type of document depends upon the goals and interests of the people involved.
If there is no agreement, then a party can seek the court’s intervention by filing a partition claim in the county in which the real property is located. A partition claim only applies to real property, which is real estate, not personal property. Also, the interest in the real property cannot be between a husband and wife who hold the property in tenancy in the entirety or that is already governed by another document, like a trust or partnership.
The court can divide the real estate, in the following manner: i) partition in kind; ii) appraisal with a buyout; or iii) sale and division of the proceeds in pro rats shares to the inviduals. In general:
i) partition in kind, the Court could divide the whole property into separate parts giving each individual a right to a specified portion of the property;
ii) appraisal with a buyout, the Court may order one individual to buyout the other individual’s interest in the property based upon a Court ordered appraisal. The individual that wants to own the property will pay money to the other individual(s) thereby terminating the other individual(s) rights in the property;
iii) sale of property, the Court could order that the property be sold and the Court would divide the sale proceeds (which does not include the normal costs associated with selling the property, like taxes and fees) to all of the individuals with an interest in the property. The distribution will be based upon the individuals’ agreement as to what their actual percentage of interest is in the property. If not agreed to, then the Court will determine this issue of fact. Typically, if there is no dispute, then the individuals would all own the property in equal shares. With this option, if done properly, then the plaintiff’s attorney could be paid from the proceeds of the sale.
For further information on a partition claim or any other issue involving real estate, whether transactional or in litigation, contact the experienced attorneys at Chitkowski Law Offices.
