Joint ownership of real property is quite
common. It is not unusual for two or more persons to jointly
purchase property, perhaps as a shared residence or investment.
Sometimes joint ownership results unintentionally: for example,
as the result of inheritance or divorce.
Whatever the reason, as time passes, joint owners may find
that they do not agree on matters relating to the property.
One may want sell the property; the other may want to keep
it. One may want to borrow against it; the other may want
to keep it free and clear. One may want to improve it; the
other may want to leave it as it is. When real property is
involved, the sources of disagreement are endless.
Fortunately, the law provides a solution: an action for partition.
Originally, this meant that either owner could file an action
asking the court to fairly divide the property into the appropriate
number of parcels, deeding one to each joint owner. Sometimes,
however, this just isn't a practical solution. For example,
suppose the property is a single-family residence or a building
of some kind. Or suppose it is a small lot that cannot be
legally subdivided. Or maybe the division of property is just
not feasible for some other reason, or would drastically reduce
the total value of the parcels. In each of these cases, physically
dividing the property is not a satisfactory solution.
To allow for situations like these, the law now allows the
property to be sold, dividing the proceeds rather than the
The procedure for the sale varies from state to state. In
some states the sale is conducted like a foreclosure sale
by the sheriff. Other states allow a receiver or commissioner
to sell the property in a more conventional manner.
In Arizona, for example, the court appoints three disinterested
commissioners who must first physically divide the property
in a fair manner if they can. If they determine that the property
cannot be fairly and equitably divided, or that the value
of the property will be depreciated by physically dividing
it into separate parcels, they are to so inform the judge.
If the judge agrees, the judge then appoints one commissioner
to sell the property in the manner directed by the judge.
This gives the judge the discretion to decide whether the
property should be auctioned off on the courthouse steps,
listed with a broker, or sold in some other manner. Regardless
of how it is sold, the proceeds are divided among the co-owners
in accordance with their ownership interests.
If you and your co-owner cannot agree on the management or
disposition of real property, you can file an action for partition
to have it physically divided. If physical division is not
feasible or would result in the depreciation of the property,
the court may order it sold and the proceeds divided.
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