Petition to partitionWhen someone owns real estate with another person, or many individuals own it together, they often disagree about how it should be sold, at what price, or whether one person should buy out the others. This often occurs when someone dies, leaving the real estate to multiple owners.

In such a situation, there is a proceeding called a Petition to Partition. This allows at least one of the individual owners to petition the court to divide the property and force a sale. When this process is initiated, a notice is issued by the court and served upon all owners of the property, as well as anyone who may have an interest in it, such as a lien holder or the holder of a mortgage. 

In most cases, a probate court judge will then appoint an attorney to serve as the commissioner. This commissioner’s duties and responsibilities are to market the property, locate a buyer, usually with the help of a realtor, and sell it. Distribution of the net proceeds is then made to the individuals in the shares to which they own the property. 

This process is somewhat time consuming and expensive, as most of the owners usually engage their own lawyer. Naturally, anybody who doesn't want this matter to proceed may file an objection with the probate court, but normally, their objection will be overturned, as the other owners have a right to force the sale of the property. 

These situations often occur when a family can’t agree on the terms of the sale itself. In many cases, however, a family is unable to agree or communicate in any fashion that would allow the matter to proceed uncontested, and therefore, the partition proceeding is necessary in order to force the sale on behalf of the uncooperative or disagreeable heirs. 

The Petition to Partition proceeding should be viewed as a last resort when there is basically no cooperation among family members. All parties must understand that there will be significantly more expense and time delay, and their property may in fact be sold to an unwanted buyer at a lower than anticipated price. However, whenever there is a forced sale of property, there is usually a line of buyers available who know that the property must be sold due to lack of sufficient funds to pay the taxes, insurance, utilities, etc.

Another, less costly option would be to hire a mediator to work out a family disputes rather than pursuing litigation in such a situation.

Hyman G. Darling, Esq.

 Photo credit: Microsoft 

This post originally appeared on Bacon Wilson, P.C.'s blog entitled, "Estate Planning Bits."