The Elements of a Partition Action

Property Owners

In an action for partition, two parties who share an undivided ownership interest in a parcel of property can petition the court for a division of the real property. This is known as judicial partition, and it takes place when the co-owners cannot consent to voluntary partition of the land. A partition is necessary when the parties do not share the same views on how the property should be used or improved, or whether it should be sold to another party. A partition action is the legal process through which the property is divided into individual shares among the owners. Each owner can then determine independently how to utilize or maintain the property.

The initiation of a partition action in court requires certain elements. First, establishing that title belongs to multiple co-owners of the property is necessary to request severance. Multiple parcels of land cannot be partitioned unless all parties have an interest in the entire property. Second, the party seeking partition should have actual or constructive possession of the property. Thus, a partition action cannot be based on potential future ownership of the property. Last, a partition action can be initiated at any time; the cause of action exists during the entire term of co-ownership of the property.

An action for partition is based on a claim in equity. This means that the claimant is seeking an injunction, which is a court order that compels a party to perform an action or refrain from some type of conduct. Therefore, the parties in a partition action are not entitled to a trial by jury. A trial by jury may take place only if there is a dispute regarding title to the property.

The goal of a judicial partition is to divide the possessory right to the property through two judgments. In the first judgment, the court makes a determination as to the share that will be allocated to each joint owner and settles any questions related to title of the land. In the second judgment, the court distributes the distinct shares to the respective parties or authorizes the sale of the property, if it determines that sale of the property is warranted.

The experienced team of attorneys at the Law Offices of Mark Weinstein, P.C. can help you litigate your real estate claims. Contact Mark Weinstein and his colleagues at (770) 888-7707 or visit them at to find out how they can advise you.

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