What is a Petition to Partition?

Imagine you and your siblings inherit property. One of you want to sell the family home, but the others don’t. (Although, due to the new property tax law under Proposition 19, you may have to sell just to cover the taxes! See our previous post here.)

What should you do? The best thing to do is sit down and negotiate: compromises and good will at the outset can save everyone a lot of time and money, and may save the holidays too. But families being families, sometimes an agreement is impossible, and you will have to take the standoff into the courts.

A petition to partition can force a resolution, but it should be seen as an instrument of last resort. Any co-owner can file a suit to partition, but it will usually be a party that wants to sell. The partition action requests that the court divide the property fairly between all owners. It is clear, then, that for most properties this will result in the sale of the property so that the proceeds can be divided fairly between all parties. The process can be expensive, time-consuming, and may result in the property selling for a lower price due to the forced sale.

The process starts with a notification to all interested parties, including lien or mortgage holders. Often everyone will retain their own real estate attorneys, who can raise objections to the process and ensure that all parties’ rights are fairly represented, but hopefully the attorneys can also help ensure that cooler heads prevail. In fact, getting real estate attorneys involved may sometimes be the best way to avoid a lawsuit.

Because of the cost and delay of forcing a sale through the partition action, often the co-owners will take the intermediary step of mediation. A disinterested third party works to facilitate a compromise, attempting a “do over” of that initial failed dinner-table conversation that brought everyone to this point. This option could save everyone money, and once filed with the court clerk’s office, the decision reached in mediation is legally binding.

If mediation proves impossible, the petition action may continue, likely forcing the sale of the property eventually. If you are facing or thinking about a petition to partition, you are likely in a stressful, emotionally charged situation. Do not hesitated to contact us

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