A petition to partition initiates a legal proceeding, which allows a co-owner of real property to dispose of the same by physical division or forcing a sale. Petitions to partition are governed by G.L. c. 241. Each co-owner of property has the “‘equal right of entry, occupation and enjoyment'”. Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 90 (2008), quoting Muskeget Island Club v. Prior, 228 Mass. 95, 96 (1917). However, if, for whatever reason, a co-owner no longer wishes to hold title to the property with his or her other co-owners, then that individual has an absolute right to file a petition to partition to dispose of the co-owned property. See Hershman-Tcherepnin, supra at 92. Parties can, however, enter a contract that may limit or restrain their rights to partition co-owned property, if the restraint is for a reasonable period of time. See id. at 93.
Pursuant to G.L. c. 241, § 2, the Probate Court and Land Court have jurisdiction over all petitions to partition. Once the court determines that the individual filing the petition is, in fact, entitled to a partition of co-owned property – i.e., is, in fact, a co-owner and has not agreed temporarily to refrain from partitioning the property – it shall “appoint one or more disinterested commissioners and issue a warrant to them to make partition.” G.L. c. 241, § 12. The presumptive method of partition is to physically divide the property amongst the co-owners, which is called a partition in kind.
However, increasingly, in modern times, co-owned property cannot be advantageously physically divided; lots have grown smaller and smaller since the partition statute was first enacted in Colonial times. In such an instance, “[t]he court must find by a preponderance of the whole evidence that the land cannot be advantageously divided.” Clough v. Cromwell, 250 Mass. 324, 332 (1924). If the property cannot be advantageously divided, the court will order a forced sale of the property. Neither of the parties in a petition to partition bears the burden of proof as to whether the property should be partitioned by division or sale; however, the court is required to make this assessment itself under the statute, before ordering the partition, either in kind or by sale, to occur.
If co-owned property is sold, there can be an extensive accounting that must be done in order to determine what is just and equal for all co-owners. As part of the partition, the court renders an accounting, which is an equitable proceeding in which the trial judge has wide latitude, in equity, to determine how the proceeds of the partition should be distributed among the co-tenants. See G. L. c. 241, § 25. Thus, the Probate Court and Land Court have wide discretion to hear matters that pertain to or arise from the petition to partition and the coownership of the land at issue. As there are many claims and issues that can arise in these accounting proceedings, we will address the accounting of a partition sale in another, subsequent blog post.
If you co-own property and are looking to dispose of your interest in the property, the attorneys at Phillips & Angley can assist in assessing your situation. The attorneys at Phillips & Angley can help you work towards a private settlement with the other co-owner(s) or we can evaluate the likely outcomes of filing a petition to partition with the court.
Written by Alexandria K. Castaldo, Esq.
Copyright (c) 2018 -2019 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
