Partition Laws
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Real estate can be owned jointly by more than a single person at a time. Sometimes people purchase property together or, more commonly, they can inherit land as fractional owners with siblings and other family members. Tenants in common, as this arrangement is typically called, have access to use all of the property regardless of their fractional interest. This can cause problems. When tenants in common cannot agree, or if one or more tenants wish to withdraw from the ownership arrangement, then courts may need to separate the interests through a partition action.
Partition laws across the country vary between two primary legal operations, partition-in-kind and partition by sale. Most states will utilize both methods dependent on the equities of the specific situation. Even in the states that utilize both methods they tend to have a more commonly used method. As the number of co-owners increases, the difficulty to implement partition-in-kind increases. The importance of the Uniform Partition of Heirs Property Act, or similar laws, is to make partition-in-kind an option in circumstances where there could be numerous co-owners. The following table outlines the general category each state falls into, the relevant statutory sections, and a brief description of the state’s process. This compilation was last updated in October, 2022.
|
State |
Relevant Statute Sections | Partition-in-Kind | Partition by Sale |
Description |
| Alabama* | Alabama Code | Preferred | Possible, burden to satisfy | Alabama Court’s defer to a sale when the commissioner’s report shows that a “just and equal division of the land cannot be made, or that a sale will better promote the interests of the cotenants.” |
| Alaska | Alaska Statutes | Preferred | Possible, burden to satisfy | Alaska Court’s defer to a sale when “it appears that the property or a part of it is so situated that partition cannot be made without great prejudice to the owner.” |
| Arizona | Arizona Revised Statutes | Preferred | Possible, burden to satisfy | Arizona’s statutory language has two standards for ordering a partition by sale: (1) fair and equitable division of any part cannot be made and (2) fair partition of the property cannot be made without depreciating the value thereof. |
| Arkansas* | Arkansas Code | Possible | Possible, burden to satisfy | Arkansas Court’s defer to a sale if the land is “so situated that partition cannot be made without great prejudice to the owners.” Arkansas’ statutory scheme directly mentions the handling of property with distinctive features such as farmland and buildings. |
| California* | California Code of Civil Procedure | Statutory Default | Possible, burden to satisfy | A sale can take place when the parties agree or the court determines “sale and division of proceeds would be more equitable than division of property.” The statute requires compensation for prejudiced parties. The statute also allows for improvements to land to be allocated to the party who made the improvement. |
| Colorado | Colorado Revised Statutes | Preferred | Possible, burden to satisfy | A Colorado court can order a sale “if the commissioner’s report and the court finds that the partition of the property cannot be made without manifest prejudice to the rights of any interested party.” |
| Connecticut* | Connecticut General Statutes
– § 52-495 – § 52-500 – § 52-502 |
Possible | Possible, burden to satisfy | To receive a partition by sale when a complaint shows that a sale will better promote the interests of the owners. Although this is a similar standard to other states, it seems to be a slightly lighter burden. |
| Delaware | Delaware
– § 724 |
Preferred | Possible | A partition by sale will be ordered when a three person court-appointed commission determines that a sale is required out of fairness. |
| Florida* | Florida Statutes
– § 64.051 – § 64.061 – § 64.071 |
Possible | Possible, burden to satisfy | Florida Court’s can issue an order for sale of the property when the land is “so situated that partition cannot be made without prejudice to the owners.” Interestingly, the statute allows or the sale of land on credit. |
| Georgia* | Georgia Code | Preferred | Possible, burden to satisfy | Georgia partition scheme is broken into equitable and statutory partition. Under statutory partition, to receive a partition by sale, a party must convince the court no just division is possible because of improvements, value for mining purposes, or the entire value will be depreciated. |
| Hawaii* | Hawaii Revised Statutes
– § 668-1 – § 668-7 |
Preferred | Possible, burden to satisfy | Hawaii courts will allow a sale of disputed land when “it appears that a partition cannot be made without great prejudice to the owners.” Of note, the Hawaii statute explicitly mentions allowing an agreement of allotments by the parties. This shows their hope to reach an amicable resolution. |
| Idaho | Idaho Code
– § 6-509 – § 6-512 |
Default without sale burden satisfied | Possible, burden to satisfy | Idaho’s statute allows for a partition by sale if the land is “so situated that partition cannot be made without great prejudice to the owners.” If this is not demonstrated then physical division will take place. |
| Illinois* | Illinois Compiled Statutes
– 5/17-101 – 5/17-105 – 5/17-106 |
Clear Preference | Possible, burden to satisfy | Can order a partition-in-kind if the court “shall determine whether or not the premises or any part thereof can be divided among the parties without manifest prejudice to the parties in interest.” If a sale is the only practical option, the land must sale for at least two-thirds of its appraised value. |
| Indiana | Indiana Code | No, unless party agreement | Yes | Indiana has modernized their partition statute with the goal of achieving a party led resolution. If the parties do not agree to a split of the land within sixty days, then the court will order a sale. The parties then have the option to agree on an auctioneer, if this fails then an order is entered for a sheriff’s sale. |
| Iowa* | Iowa Statutes
– § 651.2 – § 651.11 – § 651.16 – § 651.18 |
Possible, burden to satisfy | Preferred | Iowa’s statute defaults to a sale unless one of the parties request a partition-in-kind. The court must find the partition-in-kind is equitable and practical. In limited circumstances, the court will use a hybrid. In this method, the court will divide some of the land and sell the remainder. |
| Kansas | Kansas Statutes | Preferred | Possible, burden to satisfy | A sale will be order when a partition-in-kind cannot be made without “manifest injury” or other practicality reasons. If a sale is ordered, then the property will be appraised and the parties will have the option to purchase the whole. If no purchase occurs a sheriff’s sale will take place, where the property must sell for two-thirds of its appraised value. |
| Kentucky** | Kentucky Revised Statutes | Default | Court order possible | In Kentucky, a three-member commission will make a “fair and equitable” determination on the division of the property. The statute is silent as to a partition by sale, but the courts have shown a willingness to do so when the division is susceptible to advantageous division. |
| Louisiana | Louisiana Civil Code
– Art. 810 – Art. 811 |
Possible | Possible | The parties in Louisiana can bring an action for partition-in-kind or partition by sale. The partition by sale will be granted if the land is not susceptible into lots of nearly equal value. The court will give the parties in interest an opportunity to purchase the other shares when a sale has been ordered. |
| Maine | Maine Revised Statutes
– § 6501 – § 6511 – § 6515 – § 6521 |
Possible | Possible | Petitioners in Maine can initiate a statutory partition, partition-in-kind, or an equitable partition, partition by sale. In the event of physical division the courts have the power to order compensatory payments as well as any other “appropriate non-physical division.” |
| Maryland* | Maryland Code
– § 14-107 |
Possible | Preferred, burden to satisfy | Maryland’s statue is concise but seemingly follows many other states. The court will order a sale of the as long as it “appears that the property cannot be divided without loss or injury to the parties interested.” |
| Massachusetts** | Laws of Massachusetts | Preferred | Possible, burden to satisfy | A partition by sale will take place when the whole or part of the property “cannot be divided advantageously.” The statute also allows for a hybrid of partition-in-kind and by sale. Essentially, the land can be partially split and sold. |
| Michigan | Michigan Compiled Laws | Possible | Possible | Michigan statute offers multiple possibilities. The courts are instructed to order a sale when physical division of the land cannot be made without great prejudice. Also, the court has the option to divide some of the land and order a sale for the remainder. The court can also require payments from one party to another when required to make the division fair. |
| Minnesota | Minnesota Statutes
– § 558.04 – § 558.11 – § 558.12 – § 558.14 |
Clear preference | Possible, burden to satisfy | The statutory language indicates “in a proper case, the court shall render judgment of partition to made accordingly.” The statute allows for certain buildings, structures, or improvements to be set aside with just compensation going to the other party. |
| Mississippi* | Mississippi Code | Preferred | Possible, burden to satisfy | Mississippi courts can order a sale of the disputed land if the sale “better promote the interest of all parties over partition-in-kind, or if the court be satisfied that an equal division cannot be made.” The Mississippi Supreme Court clearly prefers partition-in-kind but acknowledges that every circumstance is dependent on the factual situation present. |
| Missouri* | Missouri Statutes | Preferred | Possible, burden to satisfy | The court will appoint commissioners to divide the land unless division cannot be done without “great prejudice to the parties in interest.” The court is allowed to divide some of the land and sell other portions. The sale is done through an auction with no minimum bid. |
| Montana* | Montana Code | Preferred | Possible, burden to satisfy | Montana’s statutory scheme allows for a partition by sale when the division cannot be done without great prejudice. When a division is determined proper, a three-person committee will be appointed to decide on the division. Improvements to the land made by specific parties is to be considered when dividing the land. |
| Nebraska | Revised Statutes of Nebraska | Default | Possible, burden to satisfy | An appointed group of referees will make the determination of whether a partition-in-kind will be of great prejudice to the owners. If so, then the referees then decide the most appropriate time and manner for the sale of the land. |
| Nevada* | Nevada Revised Statutes
– § 39.120 – § 39.270 |
Possible | Preferred, burden to satisfy | In Nevada, the courts will order a partition by sale whenever the land cannot be split without great prejudice or when the parties’ consent to such action. The court has the option to appoint an individual to determine the best means of partition, although the court may do so itself too. |
| New Hampshire | New Hampshire Revised Statutes
|
Possible | Possible | The New Hampshire partition statue is fairly vague, allowing partition by sale when the division of the property cannot happen without great prejudice. The statutory scheme does allow for partition-in-kind with unequal divisions as long as the party receiving a greater share compensates the other party. The statute commands the courts to conduct a sale as any other court of equity. |
| New Jersey** | New Jersey Statutes | Default | Possible, burden to satisfy | The New Jersey statute defaults to partition-in-kind unless the division cannot be made without great prejudice. Additionally, the statute allows for partial division and partial sale if only a portion of the property is situated to cause prejudice. |
| New Mexico* | Statutes of New Mexico
– § 42-5-6 – § 42-5-7 |
Possible | Possible | In New Mexico, a three-person commission will determine whether the division can take place without manifest prejudice. If a sale is determined to be proper then the land will be placed up for auction. At auction the land cannot sale for less than one quarter the appraised value. |
| New York* | New York Consolidated Laws
– § 915 – § 921 – § 943 |
Default | Possible, burden to satisfy | As with some other states, New York’s statute appoints commissioners to carry out the partition process. A partition-in-kind will be ordered unless it will result in great prejudice. Before a public sale, the courts allow for one party to purchase the other party’s share(s). |
| North Carolina** | North Carolina General Statutes
– § 46A-75 |
Default | Possible, burden to satisfy | North Carolina are directed to physically divide land unless it will cause substantial injury to a party. The statue includes three considerations (1) whether fair market value for any single cotenant’s share would be materially less than a sale as a whole, (2) whether a material impairment of any cotenant’s rights would result, and (3) whether owelty can mitigate or eliminate any substantial injury. The statue has been updated to allow one party to get contribution for the carrying costs for preserving the property such as property taxes and insurance. |
| North Dakota | North Dakota Century Code | Default | Possible, burden to satisfy | North Dakota’s statute allows for a partition by sale if great prejudice will occur from a physical division. If a physical division is impractical, the court may first look to see if a partition of the original cotenants is fair and divide in that manner. The first partition may be followed by another if the remaining portions are still split. |
| Ohio | Ohio Revised Code | Default (focused on a party resolution) | Possible, burden to satisfy | Ohio’ statute is focused on finding an amicable solution. The court can order a sale if division cannot take place without manifest injury. In the event of a sale, the court will have the land valued, at which point the parties will have the option to pay the other parties the appraised value. Prior to the court entering a partition order, the parties will have an opportunity to agree to a binding solution. If sold, the land will be auctioned by a sheriff or licensed auctioneer. |
| Oklahoma** | Oklahoma Statutes
– § 1507 – § 1513 – § 1517 |
Possible | Preferred | In Oklahoma the court appointed commissioners are instructed to allot parcels/shares to the parties. Within twenty days of this determination, the parties have the opportunity to buy each other out at the value. If no party offers to buy or the offers match each other, the court will order a sale. The sale is done by auction and cannot be for less than two-thirds of the appraised value. |
| Oregon | Oregon Statutes | Possible | Possible, burden to satisfy | Partition-in-kind is directed when the property cannot be divided without great prejudice to the owners. Interestingly, if the sale or division is not fair to any of the parties, Oregon law allows for one party to purchase the property at the court determined value by borrowing money against the land as a whole. |
| Pennsylvania | Pennsylvania Rules of Civil Procedure
– § 1560 – § 1561 – § 1562 – § 1563 |
Preferred | Possible, steps to complete | In Pennsylvania, the property shall be divided proportionately as long as it does not spoil the whole. If property cannot be equitably divided, then it should be divided with owelty owed by the party receiving the greater share. In the event the above is not possible the court gives the parties the opportunity to buy each other out. If all the above fails the property will be sold to a private outside buyer or at auction. |
| Rhode Island | General Laws of Rhode Island | Possible | Possible | The Rhode Island statute does not give a standard to follow. Although a partition by sale can be obtained through the court’s discretion or upon motion of the parties within the suit. The statute does give the court’s the ability to set a minimum sale price. |
| South Carolina* | South Carolina Code | Default | Possible, intraparty resolution first | Partition-in-kind is the default unless it is shown that the land cannot be divided fairly and impartially. Under the statute, the nonpetitioning party explicitly has the opportunity to purchase the petitioning parties share. The parties first have a chance to come to an agreement. If no agreement is reached then the court appraises the land and the nonpetitioning party has 45 days to purchase the petitioning party’s share. |
| South Dakota | South Dakota Codified Laws | Preferred | Possible, burden to satisfy | A partition-in-kind will be performed unless great prejudice will occur to one of the parties. Additionally, the courts will order compensatory adjustments to the partition-in-kind before ordering a sale. |
| Tennessee** | Tennessee Code | Preferred | Statute is silent | The Tennessee statute looks to partition-in-kind considered the quality and quantity of the property. The commissioners have the opportunity to institute equalizing charges if they are not satisfied with the physical division. |
| Texas* | Texas Property Code
– § 23.001 Texas Rules of Civil Procedure – § 770 |
Default | Possible, burden to satisfy | The Texas statute defaults to a partition-in-kind unless the land is “incapable of partition.” The courts are instructed to appoint a committee to separate the land based on quantity and quality so that the shares represent near equal value. |
| Utah* | Utah Code | Default | Possible, burden to satisfy | Utah’s statute defaults to physical division unless great prejudice will occur to one party. If a sale is ordered, no minimum price is set for the required public auction. Interestingly, if the property has a yearly tenant with less than 10 years of rights left, the tenant’s rights in the property are not affected by the partition action. |
| Vermont | Vermont Statutes
– § 5170 – § 5175 |
Possible | Possible | Three commissioners will be appointed to partition the property. If a sale is determined proper, then the parties will have the opportunity to purchase the other share before an auction or private sale. Interestingly, if a spring is positioned on the disputed property, then the right to use the water must be equitably apportioned between the parties regardless of where it is located. |
| Virginia* | Virginia Code | Preferred | Possible, burden to satisfy | In Virginia, a partition-in-kind shall be ordered when the property is susceptible to practicable division. A party may request a sale, but the above standard is necessary. If a sale is ordered than the court must first offer the sale to any party within the dispute. If a sale does not occur to one of parties, then the court can order a public or private sale, whichever it finds to be more economically advantageous. |
| Washington | Revised Code of Washington | Possible | Possible, burden to satisfy | An order for partition by sale is proper when the land is situated that physical division cannot be made without great prejudice to the owners. The statute also allows for the court to sell some of the land and physically divide the remainder between the parties. |
| West Virginia** | West Virginia Code
– § 37-4-3 |
Possible | Preferred | A partition by sale will be ordered when the physical division “cannot be conveniently made.” The statute provides a procedure whereby one of the interested parties may pay the other for their share before a sale of the entire piece of land is commenced. |
| Wisconsin | Wisconsin Statutes
– § 842.02 – § 842.14 |
Possible | Preferred | In Wisconsin the court must first determine whether there is a clear basis for partition-in-kind. If the original evidence is not clear than a court appointed commission will create a report to make the determination. In the event that a division takes place in an unequitable fashion, compensation will be ordered from one party to another. |
| Wyoming | Wyoming Statutes | Possible | Possible | In Wyoming, court appointed commissioners will determine if the land can be divided without manifest injury to its value. If division is unfair then the court must approve the commissioner’s valuation. Either party will have the opportunity to purchase the other party’s share before a sheriff’s auction. |
*Indicates the enactment of the Uniform Partition of Heirs Property Act or something substantially similar.
**Indicates the introduction of the Uniform Partition of Heirs Property Act or something substantially similar.