In real estate law, the partition of land (and buildings thereon) is a useful, and often necessary tool , that can be used to divide property when the land is owned by two or more individuals holding undivided interests. The right to partition is an absolute right and does not require the consent of other co-tenants. Notably, partition is not available in those cases where the land is held by husband and wife as tenants by the entirety.
Partition actions are governed by M.G.L. c. 241, §§ 1-37. The Appeals Court case of Canepari v. Pascale , 78 Mass. App. Ct. 840, 844 (2011), succinctly captured the essence of partition proceedings:
[A]lthough 'the purpose of partition proceedings is to balance the rights and equities of the parties concerning the property at issue,' [citation omitted] and the over-all object of partition proceedings is a 'just and equitable division, [citation omitted] there is a rebuttable presumption that partitioned property should be equally divided. [citation omitted] "Confronted with a petition for partition, a co-owner may attempt to show that his beneficial interest is 'different from that indicated by the record title.'" [citation omitted] But the burden of showing that a departure from equal division is appropriate rests with the party who seeks the departure. [citation omitted] And, though the judge necessarily is given considerable leeway in making an equitable division, [citation omitted] that leeway is not boundless.
These actions are initiated by a "petition to partition" in either the Land Court or Probate Court. The courts will have complete jurisdiction in equity over all matters relating to and arising out of the partition, including the power to order the sale of the subject property. The court appoints a commissioner (usually a disinterested attorney selected from a list maintained by the court) to provide notice of the partition to all known interested parties, oversee the partition and file a report with the court. See M.G.L. c. 241, § 12.
Depending on the nature of the property, the partition can be effected in two different ways: the physical division of land or a public or private sale of all or a part of the subject land which the court finds cannot be "advantageously divided".
In cases where the land is easily divisible among co-tenants, the partition can often result in a physical division of land among the various co-tenants. Using its equitable powers, the court is authorized to grant easements over partitioned property to ensure continued access among the interested parties.
But in some cases the land is not readily or advantageously divisible, such as in cases where the topography or physical features of the land would preclude an equitable division or result in worthless parcels, or when there are structures on the property that are not conducive to equitable allocation among co-tenants. A classic example is where two co-tenants own a lot with a two-family house situated thereon.
These kinds of situations are governed by M.G.L. c. 241, § 14:
If a part of the land cannot be divided without great inconvenience to the owners, or is of greater value than the share of any party, or if all the land cannot be divided without such inconvenience, the whole or any part thereof may be set off to any one or more of the parties, with his or their consent, upon payment by him or them to any one or more of the others of such amounts of money as the commissioners award to make the partition just and equal.
In these instances, the court may order the sale or conveyance of the entire parcel of land (with structure thereon) or a portion thereof, with proceeds to be divided according to the fractional interests held by the co-tenants. Incidentally, it appears that the power to grant easements over the subject property is equally applicable to parcels of land that are sold or conveyed in whole; this becomes relevant when co-tenants own adjoining parcels of land. See , e.g. , Roman Catholic Archbishop of Boston v. Mahoney , Misc. Case No. 09 MISC 413496 (Land Ct. May 25, 2012).
A few other things to note about partitions:
- The existence of a lease for whole or part of the property to be divided cannot prevent a partition; however, the "partition shall not disturb possession of a lessee under a lease covering the interests of all the co-tenants." M.G.L. c. 241, § 1.
- If the petitioner seeking the partition requests a private sale (as opposed to a physical division of land), the petition must include "the minimum sum for which the sale may be made shall be stated". M.G.L. c. 241, § 6.
- There are several notice requirements that accompany the filing of a petition to partition, including filings with the registry of deeds (recorded land) or undertaken in accordance with M.G.L. c. 185, § 86, (registered land), and by notice of citation via personal service or registered mail to respondents and interested parties and by publication in a local newspaper as ordered by the court. M.G.L. c. 241, §§ 7-8.
- The reasonable expenses arising out of the partition proceedings-including but not limited to the title exam, preparation of plans, counsel and commissioner fees-shall be borne out of the proceeds of the sale in those cases where a sale is ordered, or by the petitioner (who will be entitled to contribution from parties to whom shares of the land are set off and take a vested interest). M.G.L. c. 241, § 22.
Partition makes sense in many cases, and this post covers only the basics. Stay tuned for future posts that explore interesting partition cases adjudicated by the Land Court and Probate Court, as well as some insight related to cases previously handled by our office.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.