Partition - When a Co-Owner of Real Estate Refuses to Sell

Divorce Lawyers In Nj - Partition - When a Co-Owner of Real Estate Refuses to Sell

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To partition or not to partition, that is the question. Partition is a legal performance instituted for the purpose of dividing real estate owned by two or more people. If one or more of the co-owners of real estate is or are unwilling to sell the property and divide the proceeds of sale in accordance with all of the co-owners' possession interests, it is the only way that a person who owns a share of real estate as a tenant in coarse or joint tenant can isolate his or her interest from the other co-owners.

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Divorce Lawyers In Nj

A joint tenancy is a form of possession in which the co-owners own a property equally. If one dies, the other automatically inherits the whole property. By contrast, a tenancy in coarse is a type of joint tenancy of property without right of survivorship; each co-owner's measure is distributable under a will. Thus, in a tenancy in coarse each can leave his or her interest upon death to beneficiaries of his selecting instead of to the other owners, as is required with joint tenancy. The type of possession is considered by reading the record in the deed. In New Jersey, two people, other than married couples, are presumed to own property as tenants in coarse unless they've agreed otherwise in writing in the deed. If two or more individuals inherit property then the last will and testament of the decedent will specify the type of joint ownership.

Partition of real estate can be in kind, meaning that the property is well physically divided and split up among the owners. If that is not possible, and it most ordinarily is not possible, then a court ultimately will order a public or underground sale of the real estate and the division of the sale proceeds among the parties according to their respective interests. Thus, it is common, and often in the parties' mutual best interest, to work out a deal in which one co-owner buys out the other(s).

A real estate attorney may have to file partition actions in the middle of parent and child, brother and sister, boyfriend and girlfriend and gay couples. When a married integrate owns property and seeks to end the marriage and divide the property, the case will be heard in the excellent Court, Chancery Division, family Part, as part of the divorce. For all other co-owners of property there is no other recourse than to file a Complaint in the Chancery Division, general Equity Part. Partition is an equitable remedy so the Chancery Judge will hear all the facts and make a decision based on equitable factors.

These matters are usually very emotional because not only do they signify the end of a joint possession of property, but they also signify the end of a relationship. A real estate attorney may be helpful in facilitating transportation in the middle of the parties.

In many instances, one party has been paying the majority of the maintenance expenses of the property and residing on the property while the other party is not residing there, but also not paying any of the ongoing expenses of the property. Consequently, the party in possession of the property believes that he/she should be compensated for paying all the expenses and the other believes he/she should be compensated for not having use of the property. In order to reconcile both parties' competing interests, the Courts have established general rules regarding partition:

1. On a sale of ordinarily owned real estate, an owner who has paid less than his pro-rata share of operating and maintenance expenses of the property, must pay over his/her share to the co-owner who has contributed more than his pro-rata share, and that is true even if the previous had been out of possession and the latter in possession of the property.

2. The fact that one tenant in coarse occupies the property, and the other does not, imposes no compulsion on the previous to make any contribution to the latter. All tenants in coarse have a right to occupy all of the property and if one chooses not to do so, that does not give him the right to enforce an "occupancy" payment on the other.

3. Notwithstanding those general rules, when, on a final accounting following sale, the co-owner who had been in sole possession of the property demands contribution toward operating and maintenance expenses from his co-owner, fairness and equity dictate that the one seeking that contribution allow a corresponding prestige for the value of his sole occupancy of the premises. The party seeking the prestige for the other's occupancy of the property has the burden of demonstrating the "actual rental value" of the property enjoyed by the occupying co-tenant because ordinarily the cotenant who is not excluding others is not accountable for use and occupation.

Thus, what a person's interest in the property is for purposes of partition varies depending on the facts of each case. Even though there are general rules, because partition is an equitable matter, the decision in each case is up to the sound discretion of the judge.

It is very prominent to seek the advice of a distinguished real estate attorney who has handled partition matters. Each partition matter is fact sensitive and you need a lawyer who will vigorously argue on your behalf. It is also prominent to withhold any documents connected to the purchase and care of the property. If the parties have made any type of business agreement with regard to the eventual sale of the property, the business agreement must be in writing.

If you have any questions about partitioning a property, please do not hesitate to call us.

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