Do I Need A Partition?
My three siblings and I inherited real property and one of them refuses to sell or help pay the taxes; is a partition my only option?
Sound familiar? Partitions are often the by-product of one’s failure to make a plan but are sometimes also the result of a poorly-created estate plan.
Sometimes well-meaning parents create estate plans that are almost guaranteed to result in the filing of a partition action. A single parent, hoping to help her children avoid probate, adds all three of her children to the deed on her homestead or executes a Transfer on Death deed, naming all three. Upon her passing, the children now own the homestead equally, as either joint tenants or tenants in common, each one entitled to possess, use, and enjoy the land.
Or consider Grandpa Jones, who owned 20 acres of vacant land in Logan County, Oklahoma. He dies intestate, meaning he failed to execute a Last Will and Testament or trust. Upon his death, one of his four children files a probate. At the conclusion of the probate, the acreage is distributed to the four children in equal shares.
If the children are aligned (all desire to rent the home/land), then, generally, co-ownership may not pose any issues, currently. However, when the children disagree as to how the home or land should be used, or one of the children passes away, co-ownership can become problematic and a partition action may be the only solution.
What Is A Partition?
Any owner of real property has the legal right to file a lawsuit asking the court to partition the land. The law will not force individuals to co-own real property. There are two types of partition: partition in kind and a sale of the land. Where partitioning in kind will not result in manifest injury to a party, the courts prefer it. So Grandpa’s 20 acres may be divisible into 5 4-acre chunks. Mom’s homestead, however, will likely need to be sold.
How Does A Partition Work?
When a petition to partition is filed, the plaintiff (party who filed the petition) must set a hearing on the petition, serve the other owners (“defendants”), and publish notice of the hearing if any defendants’ whereabouts are unknown. At the hearing, the court will decide the ownership and order the partition. Then three commissioners must be appointed to either determine how the real property can be divided in kind or appraise the property if it cannot. They render a report, which is provided to the defendants, who have twenty days to object to the determination regarding the partition or elect to purchase the property at the appraised value.
If no one objects or elects to purchase, the court will confirm the commissioners’ report and order the sheriff in that county to sell the property for at least two-thirds of the appraised value and make a return of the sale to the court, who must approve the sale. Notice of the time, date, and place of sale shall be published. The highest bidder prevails and deposits the purchase funds into the court clerk.
After the court confirms the sale and renders an order determining each owner’s entitlement to the funds, the court clerk distributes the sale proceeds to the owners pursuant to the order.
What Can I Expect To Pay For A Partition?
There are many moving parts to a partition action, particularly if one (or more) of the defendants’ whereabouts is unknown (requiring publication at every step) or a defendant objects. The fees for filing a partition are not insignificant. The good news, however, is that all attorney’s fees, costs, and expenses of a partition, are paid by the parties in relation to their respective share or the property.
How Long Does A Partition Take?
Generally, you can anticipate that a partition will take at least six months to accomplish, assuming no one files an objection and all of the owners’ whereabouts are known.
How Do I Get Started?
If you believe you need to file a partition, your attorney will need the names and addresses of all of the owners, the document establishing their ownership, and information regarding whether you believe anyone will object.
Shanika Chapman is an attorney with Oklahoma Estate Attorneys, PLLC who practices in the areas of probate, trust litigation, and estate planning. She received her J.D. Degree, graduating magna cum laude, from the Oklahoma City University School of Law.