A lot of states in the US typically solve complications in co-owned or jointly held properties through a process known as partition.
For instance, if both parties own the home and cannot meet in the middle in terms of who is going to get what share of the asset, the circuit court may step in and order the property to be sold while distributing the profits as per the level of investment of both those spouses. This is often also referred to as a petition of partition.
However, it is just as important to understand that there is a notable difference between partition sales of a property and a property’s divorce sales.
A major differentiating factor to understand is that during a partition sale, the court typically takes a decision on the sale of the property and how the proceeds are shared between the parties involved based on their percentage of ownership.
In a divorce sale, the court must divide the assets on an equal basis between the spouses. Another differentiating factor is that a divorce sale is the same as any normal property sale. However, both partition and divorce sales can be determined and negotiated privately by the parties involved or through the help of the court.
Understanding the Petition for Partition
In a partition petition, two or multiple people who own the same property and cannot come to terms with precisely who owns how much of the property or who gets what share of the real estate can ask the court to decide the best course of action. For example, one party wants to sell the real estate while the other owner wants to rent it out instead. If both people do not come to an amicable decision, one party can file a partition petition to have the property sold. This scenario can mostly be applied to situations where it is a commercial property, but business isn’t booming. Another situation can be a divorce.
One of the best advantages of a petition for partition is that the real estate will not have to face concurrent interest, which means, that if the property is sold, both individuals will be able to enjoy their share of the proceeds when it is sold.
Two Ways Typical Partition Petitions End
There are two solutions the court can offer when it comes to a petition for partition, they are:
- The court mandates or gives a final order that the property must be sold, either privately or through an auction. After the sale of the property, both vested parties are to be given the proceeds on an equal basis or against their individual investments.
- The second instance is where the court can order one party to take full ownership of the property but only if they buy out the real estate from the other vested party.
However, it is prudent to keep in mind that most partition petition cases end up with the court giving the order to sell the property to quash any disputes. But the same cannot be applied in cases where the property comes with a quiet title or if there is a case of ejectment.
Petitioning for Partition: Who is Eligible?
There is a different type of individuals or co-owners who can be eligible for filing a petition for partition, such as:
- Those who are engaged in joint tenancy
- Those who have tenancy in common
- Those who have tenancy by entirety
It is also important to understand that in each of these cases, we’re talking about the property being a home, which is either wholly or partially owned. So, when it comes to a partition petition, the entire property will come into consideration, which means every single room in the property will be considered.
A Brief Glimpse into the Partitions Sale Process
Generally, the order for partition sales is given by the circuit court. The main reason for this is that the owner of any given property typically files a petition with the court and wants to compel the other party to agree to sell it, which can also be done if the court mandates it.
During the trial, if the judge finds that the plaintiff should be given the entitlement to partition the property, the court will order a temporary order. If it is ordered that the property must be sold, the court will attach a third-party referee who will assist in overseeing the sale. Also, it is the court’s discrepancy whether the sale should be done via an auction or privately.
Understanding the Divorce Sale Process in a Nutshell
In a divorce sale, the judgment to sell the marital or any other jointly owned property by the spouses can be given by the court during the divorce proceeding. This usually happens if both spouses fail to come to terms with a reasonable solution as to what to do with the sale of the property. However, either party is entitled to petition the court for a sale order.
This can happen amidst the divorce process or a specifically mandated trial or hearing for this petition, mainly if the divorce case is in its “status only” proceeding.
In addition, before the court makes a final decision on whether the property needs to be sold, it will make a detailed inquiry into the merits of the case. Meaning, it is going to first evaluate whether it is appropriate to sell the property. To do that, the judge will first identify if the real estate is communal or separate.
For example, the Commonwealth of Virginia does not have communal laws. This means any property or marital asset must be subject to equitable distribution. The state of California, on the other, is a communal state, which means the court must equally divide the value of the property on a 50-50 basis. However, it is also important to note that in a non-communal state, owning a separate property is not subject to a court-ordered partition sale.