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13 Aug 2014
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CONQUERING THE DIVIDE: THE FINAL STEPS

So you have made the decision to proceed with a partition to divide or sell jointly-owned property.  Much like with any other litigation, the question of “how it works” naturally presents itself.

First, you must establish your prima facie entitlement to partition by demonstrating ownership and right to possession, typically by presenting a duly executed deed.  Importantly, you do not have to be residing in or on the property in order to have a right to partition.  Once you have provided the court with the requisite proof, the court typically refers the parties to a referee to determine the ownership interest of each co-owner of the property and, as addressed in our last post, to determine whether the property can be physically divided without great prejudice to the owners.  If such a partition in kind cannot be accomplished, the property is sold at a public, advertised auction.

Do parties always see partition actions through to the sale at auction?  As you can imagine, the combination of the parties’ costs owed to the referee and the loss in sale price almost guaranteed with a public auction can be enough in many instances to force the parties to sit down and come to agreeable terms.  In some cases, perhaps one owner agrees to purchase the other owners’ interests in the property.  In other cases, the parties agree to have a broker sell the property privately and split the sale proceeds accordingly.  Either of these options is far more cost effective than allowing your jointly-owned property to be sold at public auction, but where rights to land and property are concerned, our first reaction can be emotional.  Unfortunately, the nature of the beast dictates that letting emotion rule your decision-making in a partition proceeding will certainly cost you not just grief, but quite a bit of money.

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