Jane and Jill, sisters, inherit a 3,500 sq. ft. parcel of property located in a residential neighborhood that has a 3,000 sq. ft. home built on it. The property was inherited from their parent’s will shortly after both parents passed away. The house is located in California, while both Jane and Jill live out of state with their respective families. As such the house remains vacant, but it is used several weeks of the year for vacation when either Jill or Jane returns to California.

For the past 15 years Jane has paid all of the property taxes, upkeep, and maintenance on the property. Unfortunately Jill and Jane had a falling out some time ago, so they do not have an amicable relationship. Jane is tired of paying for the upkeep of the property and wishes to sell it. Jill however wishes to retain the property, but will not pay for the costs of the land. Jill repeatedly refuses to meet with Jane to discuss selling the property and moreover refuses to help out in taking care of the land. Thus Jane feels helpless, but does not know what to do. Can Jane force a sale of the land?

The answer most likely is yes. This classic case of ownership dispute between co-owners of property presents an issue that Webb & Bordson, APC deals with on a regular basis.

The Right To Force A Sale of Land

            When co-owners of property are in dispute regarding co-owned property, they are entitled to bring that dispute before the court. Traditionally, when the dispute between co-owners reached an impasse, the court would physically divide the land into equal portions, with each co-owner receiving one split of the land. This is known as a partition by kind, and it is the preferred method of resolving disputes amongst co-owners of property.

Recently however, partitions by sale have become an attractive method to which the courts resolve disputes amongst co-owners. A partition by sale occurs when the court forces the property at issue to be sold, with the proceeds of the sale being split evenly amongst the co-owners.

A partition by sale is a remedy that only exists when there is evidence that the property cannot be divided into sub-parcels of equal value or when division of the land would substantially diminish the economic worth of the land. In other words, if physically dividing the property up is not economically feasible, then the courts will order a partition by sale. Common examples of this occur when the size of the property is too small to divide up making the sub-parcels of land worthless; when zoning ordinances prohibit the division of property in such a manner; or when the land has physical or natural attachments that making splitting it into sub-parcels economically unfair to one party.

Jane’s Jam

            Returning to the hypothetical laid out above, Jane has a good argument for a partition by sale. The property at issue contains a 3,000 sq. ft. building on it with the surrounding property totaling another 500 sq. ft. Given that most of the property is occupied by a large home, it would be hard to divide the property up evenly in such a way between Jane and Jill so that they could both use it. Moreover dividing up land, only 3,500 sq. ft., would most likely leave Jane and Jill with sub-parcels of land that have little value. Finally, given the house is located in a residential neighborhood, it may be safe to assume there is a zoning regulation that would prohibit the division of the land in this manner. As such, a partition by kind, physical division of the property, would not be feasible.

Rather in this instance, a partition by sale would be the preferred method of dispute resolution. This would allow Jane to rid herself of the burden of paying monthly costs of the land and ensure that both Jane and  Jill got equal value from the property. Courts typically disfavor the vacancy of property, preferring that property be alienable. By selling the property through a partition by sale, the court would see that a third party moved into the home.

In total, this very common case of co-owner dispute of residential property can be smoothly resolved in a partition by sale.

So What Now

            If you find yourself in a similar position as Jane, you have legal options. Usually a partition by sale action, without contest from opposing party, can be accomplished in under $10,000. This may indeed be a small price to pay compared to the long term aggregated affect of paying property taxes, maintenance, and upkeep costs the property generates. Moreover it offers a fairly fast and painless remedy to a dispute that may be causing personal strife within your family.

Conclusion

            If you are contemplating the use of a partition by sale action for a co-ownership dispute, it is important to consult with an attorney as soon as possible. Only a professional attorney can give you the best advice on how to proceed with your case.

Whether you are the plaintiff or defendant in a partition action, WB Law Group is able to assist you. Our law firm has years of experience dealing with real estate litigation including cases involving partition actions. We are happy to review your case and advise you on how we can help and what to do next.

     For questions, or to schedule a consultation, contact us today at 559.431.4888 (Fresno) or 619.399.7700 (San Diego).

 

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