3 Things to Know About a Partition Action
Real Estate Law Blog, Vol.1.80
February 19, 2017
by Craig Franklin Chambers, Esquire
The Littleton Lawyer
As a real estate lawyer practicing in Littleton, Roxborough, Ken Caryl, Highlands Ranch, Denver and the surrounding areas, I am often retained to do a partition action.
A partition action – which is made pursuant to C.R.S. 38-28-101 (and the following statutory provisions) is the claim for relief you make to resolve disputes between co-owners of real property. This situations occurs, for example, if siblings inherit a piece of property and the heirs can’t agree on whether to sell the property, how to sell the property, how to divide the proceeds, or the terms of sale.
In filing the partition action, the first thing to remember is that all parties of interest need to be joined in the action. That includes the Homeowner’s Association, lenders, etc. If a party is not jointed, the case will likely be continued until all of the parties are joined.
The second thing, once the parties are joined, the court will first determine if the property can be divided equally and fairly, without manifest prejudice to the parties. If the property cannot be divided fairly – for example, in the case of a residential home or a condo – the court will order the property sold and the proceeds divided in proportion to the parties’ interest in the property.
The third thing, along with the proceeds being divided in accordance to the parties interest in the property, the court will make adjustments to the parties proceeds based on contributions that the made to preserve and protect the property.
These adjustments can be contentious. One party may claim the repairs made to the home by the other were unnecessary or too costly. Because of this, although a partition action is usually a question of math as to who contributed what to the property, the cases can be expensive. My best advice is to cooperate with the other co-owners and agree on a realtor to sell the property
The court can’t change the proportional interest you have in the property. The court can’t refuse to sell the property if you have an interest in the property. All the judge can do is either divide the property or order it sold, making adjustments for the parties contributions as the court deems fairs and equitable.
In most case, the cost of the partition action will far exceed the benefits you might receive from the court.