Ownership of real property - Partition

Learning Outcomes

This article explains partition in co-ownership of real property for MBE and bar exam purposes, including:

• the nature and scope of each co-owner’s unilateral right to demand partition, and when courts may delay or limit that remedy;
• how to distinguish partition in kind from partition by sale, and the factual patterns that push courts toward one remedy or the other;
• which co-tenancies permit partition, which do not (tenancy by the entirety), and how partition severs a joint tenancy and its survivorship rights;
• the basic procedural framework of a partition action and the court’s equitable powers to order surveys, sales, and accountings;
• the treatment of taxes, mortgage payments, operating expenses, necessary repairs, and voluntary improvements in allocating parcels or sale proceeds;
• the effect of sole possession, ouster, third-party rents, and claims of adverse possession between co-tenants on contribution and final distributions;
• the validity and exam treatment of agreements restricting partition, including how courts distinguish reasonable temporal limits from invalid perpetual restraints;
• integration of partition analysis with related doctrines such as restraints on alienation, creditor rights, and marital property rules; and
• common MBE distractors and traps, such as assuming rent is always owed by a co-tenant in possession or that any “no partition ever” clause is enforceable.

MBE Syllabus

For the MBE, you are required to understand the rights and remedies available to concurrent owners of real property, with a focus on the following syllabus points:

• The right of a co-owner to demand partition of real property.
• The difference between partition in kind and partition by sale.
• The procedure, equitable nature, and consequences of partition actions.
• The availability and enforceability of agreements restricting partition.
• The effect of partition on improvements, necessary repairs, and operating expenses.
• The relationship between partition, ouster, accounting, and contribution.
• The impact of partition on joint tenancies (including severance of survivorship) and on tenancies by the entirety.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following statements about partition is correct?
   1. Only joint tenants may demand partition.
   2. Partition always results in a physical division of the property.
   3. Any tenant in common may demand partition at any time.
   4. Partition is available only if all co-owners agree.
2. If a court orders partition by sale, what happens to the proceeds?
   1. They are divided equally, regardless of ownership shares.
   2. They are distributed according to each co-owner’s interest.
   3. The court keeps the proceeds.
   4. Only the co-owner who requested partition receives proceeds.
3. Which of the following is most likely to prevent a court from ordering partition in kind?
   1. The property is a single-family home.
   2. The co-owners have unequal shares.
   3. The property is easily divisible farmland.
   4. The co-owners disagree about improvements.
4. A co-tenant in sole possession has paid all real estate taxes and the entire mortgage for many years. There has been no ouster. In a later partition action, how will a court most likely treat these payments?
   1. No contribution is ever allowed for taxes or mortgage payments.
   2. The paying co-tenant gets full reimbursement, even if the value equals the fair rental value.
   3. The paying co-tenant gets contribution, but only to the extent the payments exceed the fair rental value of the property.
   4. The paying co-tenant is treated as a volunteer and gets no credit.
5. Two co-tenants sign an agreement stating that “no party shall ever seek partition” of a vacation home. One co-tenant files a partition action five years later. How is a court most likely to rule?
   1. The agreement permanently bars partition and is fully enforceable.
   2. The agreement is an invalid restraint on alienation and is disregarded.
   3. The agreement is enforceable only if all co-tenants consent to partition.
   4. The agreement is unreasonable because it is unlimited in time and will not bar partition.

Introduction

When two or more people own real property together, disputes can arise about how the property should be used or whether the co-ownership should continue. The law provides a remedy called partition, which allows a co-owner to force the division or sale of the property, ending the co-ownership. Partition is a key remedy for tenants in common and joint tenants, and is frequently tested on the MBE.

Key Term: Partition
The legal process by which a co-owner of real property can force the division or sale of the property, terminating the co-ownership and replacing it with separate ownership interests or cash.

Partition is usually a judicial process, invoked through a lawsuit in equity. Co-owners can also voluntarily agree to divide property among themselves by contract or deed (often called a “voluntary partition”), but on the MBE, “partition” almost always refers to a court-ordered remedy after a breakdown in the relationship among co-owners.

Role of Partition in the Law of Co-tenancy

Partition is the standard way to end most co-ownership disputes. Instead of leaving hostile co-owners trapped together indefinitely, partition allows:

• Each co-owner to convert their undivided interest into either:
  • A separately owned parcel of land (partition in kind), or
  • A monetary share of sale proceeds (partition by sale).
• Courts to perform a comprehensive accounting of financial dealings among co-owners.

Key Term: Co-tenant
Any concurrent owner of real property, including tenants in common, joint tenants, and spouses holding as tenants by the entirety.

Because partition is equitable, courts have flexibility to adjust for past use, expenses, and benefits. Many exam questions combine partition with earlier events (for example, one co-tenant living on the property, paying all taxes, or collecting all rents), and you are expected to recognize how those facts affect the final outcome.

Key Term: Accounting
A court-supervised process, usually within a partition action, in which financial rights among co-tenants are adjusted by evaluating rents received, expenses paid, and benefits enjoyed.

In practice, the partition action serves as a “one-stop” proceeding to unwind the co-tenancy. Courts try to decide in a single case:

• How the property should be divided or sold.
• How to allocate profits, rents, and carrying costs among the co-tenants.
• Whether any co-tenant owes another money because of exclusive possession, ouster, or improvements.

On the MBE, recognize that a request for partition almost always opens the door to an accounting, even if the question does not explicitly use that term.

Possession, Rent, and Ouster: Background to Partition

Each co-tenant has the right to possess and use the entire property, regardless of the size of that co-tenant’s fractional share and regardless of the type of co-tenancy (except that tenants by the entirety are treated as a marital unit).

This means that if one co-tenant is in sole possession, that fact alone does not make the possession wrongful and does not automatically give rise to an obligation to pay rent to the others.

Key Term: Ouster
The wrongful exclusion of a co-owner from possession of the property by another co-owner, such as changing the locks or refusing a co-tenant access after a demand to enter.

Unless there has been an ouster (or an agreement to pay rent), a co-tenant in possession:

• May occupy the whole property, even if they own a small share.
• Is not an adverse possessor against the other co-tenants merely by staying in possession.
• Generally does not owe rent to the other co-tenants for personal use of the property.

Courts treat continued sole possession as consistent with the co-tenancy unless the occupying co-tenant clearly and unequivocally asserts a right to exclusive possession or denies the other co-tenant’s rights. Simply living there for a long time, making improvements, or even paying all carrying costs does not by itself constitute ouster or adverse possession.

If ouster occurs, the ousted co-tenant can:

• Seek an injunction (or similar order) restoring the right of access; and
• Sue for the fair rental value of the property for the period of exclusion.

The fair rental value is the reasonable market rent for the whole property during the time the ousted co-tenant was wrongfully kept out. The co-tenant in possession may be given credit for expenses like taxes and necessary repairs when calculating the net amount owed.

All of these possession and rent issues can be addressed and adjusted in a later partition action through an accounting. Even if the ousted co-tenant has not previously sued for rent, the court in a partition case will typically resolve all such monetary claims at once.

What Counts as Ouster

For exam purposes, it is important to separate mere sole occupancy from ouster:

• There is no ouster where one co-tenant simply uses the property while the other stays away and never demands access.
• There is ouster when a co-tenant:
  • Physically excludes another co-tenant (changing locks, blocking entry), or
  • Explicitly claims exclusive ownership (“I own this entirely now; you have no rights”), and
  • The other co-tenant is thereby denied their right to co-possess the premises.

A subtler form occurs when an out-of-possession co-tenant makes a reasonable, specific request to enter, and the co-tenant in possession refuses. That refusal is treated as ouster from that point forward.

Consequences of ouster:

• The ousted co-tenant can recover fair rental value for their share during the period of exclusion.
• The ousted co-tenant may also start the adverse possession clock running (discussed below) if the ouster is clear and hostile.
• Courts dealing with partition will include ouster-based rent claims in the final accounting.

Co-tenant in Possession and Rent

A common exam trap is the suggestion that any co-tenant in possession must pay rent to the others. The majority rule is:

• A co-tenant in possession does not owe rent to other co-tenants for using the property, absent:
  • Ouster, or
  • An express or implied agreement to pay rent.

So if A and B are tenants in common, B moves out voluntarily, and A remains in possession without excluding B, A does not owe B rent for A’s own occupancy.

However, if A rents all or part of the premises to an outsider, A must share third-party rents with B proportionally, as explained later.

Possession and Adverse Possession Between Co-tenants

On the MBE, do not confuse long-term sole possession with adverse possession as between co-tenants:

• A co-tenant’s possession is presumed to be permissive, not hostile.
• The statute of limitations for adverse possession typically does not begin to run against other co-tenants until there is a clear ouster.
• Ouster can be shown by:
  • Explicit denial of the other’s rights (“I am the sole owner now”), or
  • Conduct that reasonably communicates exclusive ownership, coupled with notice.

Without ouster, a co-tenant cannot claim to have acquired the other’s interest by adverse possession, no matter how many years have passed.

In many jurisdictions, even after ouster, the occupying co-tenant must satisfy the usual adverse possession elements (actual, open and notorious, exclusive, continuous, and hostile for the statutory period). Courts are strict about evidence of hostility when the parties are related (for example, siblings), making adverse possession between co-tenants difficult to establish.

Because the presumption favors permissive possession, exam questions that imply adverse possession between co-tenants usually include:

• A clear repudiation of the co-tenancy, plus
• Many years passing without any assertion of rights by the out-of-possession co-tenant.

Even then, look carefully for facts showing that the out-of-possession co-tenant had notice of the repudiation; secret hostility is not enough.

Types of Co-ownership Relevant to Partition

Partition is primarily relevant for tenancies in common and joint tenancies.

Key Term: Tenant in Common
A co-owner of real property with an undivided interest that is freely transferable and inheritable, without a right of survivorship.

Key Term: Joint Tenant
A co-owner of real property holding an undivided interest with a right of survivorship; when one joint tenant dies, that tenant’s interest passes to the surviving joint tenants.

Spouses may also hold property as tenants by the entirety.

Key Term: Tenancy by the Entirety
A form of concurrent ownership between spouses that includes a right of survivorship and generally cannot be unilaterally severed or partitioned by either spouse acting alone.

Key points for the different co-tenancies:

• Tenancy in common:

  • Default form of concurrent ownership.
  • Each tenant in common has a distinct, undivided share (which may be equal or unequal).
  • Each share is freely transferable inter vivos, devisable at death, and inheritable.
  • Creditors of an individual tenant in common can reach that tenant’s share.
  • Each tenant in common has a unilateral right to seek partition.

• Joint tenancy:

  • Includes right of survivorship: when one joint tenant dies, the surviving joint tenants automatically own the deceased’s share.
  • Traditionally requires the four unities (time, title, interest, and possession) for creation.
  • Severed by conveyance, certain mortgages in title-theory states, agreement, and also by partition.
  • A partition action by one joint tenant terminates the joint tenancy, converting it into separate ownership (after the division) or into tenancy in common in the sale proceeds.

• Tenancy by the entirety:

  • Treated as one marital unit; each spouse is said to own the “whole.”
  • In most jurisdictions, cannot be severed or partitioned unilaterally; neither spouse can convey a separate interest.
  • Terminates only by death, divorce (usually converting to tenancy in common), mutual agreement, or execution by a joint creditor.
  • Because it cannot be terminated by involuntary partition, a creditor of only one spouse cannot force partition.

Tenants by the entirety do not have a unilateral right to partition; the marital unit must act together, or the tenancy must end (for example, by divorce) before partition is available. This distinction between joint tenancy and tenancy by the entirety is frequently tested: a joint tenant may bring partition without consent; a tenant by the entirety may not.

Types of Partition

There are two main types of partition:

• Partition in Kind: The property is physically divided among the co-owners, with each receiving a separate portion.
• Partition by Sale: The property is sold, and the proceeds are divided among the co-owners according to their interests.

Key Term: Partition in Kind
A court-ordered physical division of co-owned real property, with each co-owner receiving a separate parcel corresponding to their interest.

Key Term: Partition by Sale
A court-ordered sale of co-owned real property, with the net proceeds divided among the co-owners according to their interests after adjustments.

Courts treat partition as an equitable remedy, meaning the court has flexibility to reach a fair result.

Key Term: Equitable Remedy
A non-monetary judicial remedy, such as partition, governed by principles of equity and designed to achieve a fair outcome under the circumstances.

Partition can be further classified as:

• Voluntary partition: The co-tenants agree among themselves to divide the property or sell it and divide the proceeds, and then implement that agreement via deeds or a sale.
• Judicial partition: A court orders the division or sale after a lawsuit by one or more co-tenants.

On the MBE, assume you are dealing with judicial partition unless the question clearly describes a voluntary agreement.

Preference for Partition in Kind

Courts strongly favor partition in kind when feasible. A physical division preserves each co-tenant’s ownership of land, rather than forcing all owners into a cash position.

A court will order partition in kind if:

• The property can be physically divided; and
• The division will not cause substantial prejudice to the owners (for example, will not drastically reduce total value or leave one owner with a worthless piece).

Examples where partition in kind is typically feasible:

• Large, relatively uniform farmland.
• Timberland or undeveloped acreage.
• Multiple contiguous lots.
• Apartment complexes that can be divided into separate buildings or parcels with comparable value.

Courts may use commissioners or referees (surveyors, appraisers) to lay out the actual division. If an exact equal division of value is not possible, the court can order monetary adjustments (called “owelty” in some jurisdictions) so that each co-tenant ends up with the correct economic share.

MBE tip: If the property is land-like (farmland, woods, pasture) and the question does not present strong contrary facts, expect partition in kind to be the correct answer. Partition by sale is usually limited to situations where physical division is not realistic or would be grossly unfair.

When Courts Order Partition by Sale

A court will order partition by sale when physical division is:

• Not practicable (for example, a single condominium unit or an office floor); or
• Not fair to all parties (for example, division would destroy value, significantly reduce total market value, or violate zoning requirements).

Factors that commonly support partition by sale:

• The property consists of a single building that cannot sensibly be split (single-family home, one condo unit, a small retail building).
• Local zoning or subdivision regulations require a minimum lot size that cannot be met for each co-owner’s fair share.
• Physical division would seriously impair the property’s aggregate value (for example, dividing a small commercial lot into strips that cannot be developed).

For example, if zoning rules require a minimum lot size that cannot be satisfied for each owner’s share, a sale is more appropriate. Likewise, where dividing a four-acre parcel into unequal one-acre and three-acre lots would leave the one-acre lot unbuildable, courts will prefer a sale and division of proceeds.

Statutes in some states expressly direct courts to order a sale when:

• Partition in kind cannot be made without prejudice to the owners, meaning:
  • The value of each physically divided piece would be substantially less than the owner’s fractional interest in the undivided whole; or
  • One or more pieces would be functionally unusable.

The exam often signals this prejudice by noting that one parcel would be “landlocked,” “unbuildable,” or “significantly less valuable” than the others.

Who May Demand Partition

Any tenant in common or joint tenant has the right to demand partition at any time, regardless of the size of their interest or the reason for the request. Partition is a unilateral right and does not require the consent of the other co-owners.

This right exists even if:

• One co-tenant has been in sole possession for many years (without ouster or adverse possession).
• The other co-tenants strongly object to sale or division.
• The co-tenants have unequal shares.
• The co-tenants have hostile personal relationships or conflicting preferences about use.

Courts generally will not inquire into the motive of the co-tenant seeking partition. Wanting cash, wanting to end a relationship, or wanting to develop the property differently are all sufficient.

However, this unilateral right is limited in two key ways:

• Tenancy by the Entirety: Spouses holding as tenants by the entirety cannot unilaterally demand partition; both spouses (the marital unit) must act, or the tenancy must end (for example, by divorce).
• Valid Agreement Not to Partition: Co-tenants may agree to postpone partition, subject to limits discussed below.

Key Term: Agreement Not to Partition
A contract among co-tenants in which they promise not to seek partition for a specified period, enforceable if the duration is reasonable and the agreement does not completely and permanently bar partition.

Courts enforce reasonable restrictions on partition, such as an agreement not to partition for a limited time. This is not treated as an invalid restraint on alienation because:

• Any co-tenant can still transfer their share; and
• All co-tenants together can convey the entire property, thereby ending the co-tenancy.

It is common, for example, for siblings inheriting a family home to agree not to partition for a fixed period (say, 10 years), so that one sibling can continue to live there or so that the property can appreciate in value.

Additional Points on Who May Seek Partition

For completeness on the MBE:

• A co-tenant with a very small fractional share (for example, 1%) still has the same right to partition as a 99% owner.
• A minor co-tenant may seek partition through a guardian or other representative.
• A creditor who has obtained a lien or judgment against a co-tenant’s interest can, in many jurisdictions, bring a partition action to realize the value of that interest.
• Holders of future interests (for example, remaindermen) generally cannot force partition against a present possessory estate (like a life estate) simply to accelerate their enjoyment, unless a statute provides otherwise; the MBE rarely tests this detail.

Reasonableness of Agreements Restricting Partition

An agreement not to partition is enforceable if:

• The restriction lasts for only a reasonable time; and
• It does not completely eliminate the right to partition.

What is “reasonable” depends on:

• The nature of the property (for example, vacation cabin, family farm, commercial building).
• The purpose of the restriction (for example, to allow a family member to live there until children finish school).
• The length of time.

A permanent or indefinite prohibition on partition (“no party shall ever seek partition”) is generally unreasonable and treated as an invalid restraint. A court will either ignore the restriction entirely or construe it as lasting only for a reasonable period.

Bar examiners often present a deed or contract clause that flatly forbids partition forever. You should recognize such a clause as:

• Not enforceable as written; and
• Either void as an unreasonable restraint or limited by the court to a reasonable duration.

Procedure and Court’s Role

A co-owner seeking partition files a civil action in equity. Although procedure varies by jurisdiction, the basic steps are:

• The plaintiff files a complaint naming all co-owners (and sometimes lienholders) as defendants.
• The court determines:
  • The parties’ respective ownership interests.
  • Whether the property is subject to a valid restriction on partition.
• The court decides whether partition in kind or by sale is appropriate.
• If partition in kind is ordered:
  • The court may appoint commissioners to survey and divide the land.
  • A partition map is prepared and approved.
• If partition by sale is ordered:
  • The court supervises the sale (often by public auction or through a broker).
  • The sale produces gross proceeds, from which costs of sale are deducted.
• The court conducts an accounting to adjust for rents, expenses, and improvements.
• The court enters a final judgment allocating parcels (for partition in kind) or distributing net proceeds (for partition by sale).

The court will first consider whether partition in kind is feasible and fair. Courts have a strong preference for a physical division. Only if physical division is impractical or would significantly reduce the property’s value or treat owners unfairly will the court order partition by sale.

In deciding between in kind and sale, a court may consider:

• Physical characteristics of the land (size, shape, improvements, access).
• Zoning and subdivision regulations (for example, minimum lot size).
• Number of co-tenants and the size of their interests.
• Whether dividing the property would substantially reduce its total market value.
• Whether one co-tenant has made improvements to a portion that can sensibly be awarded to that co-tenant.

The final judgment of partition:

• Terminates the co-tenancy.
• Vests title in the new owners (for partition in kind) or rights to the proceeds (for partition by sale).
• Usually resolves all outstanding money claims among the parties arising out of the co-tenancy.

For MBE purposes, you are not expected to know detailed procedural rules (venue, pleadings), but you should understand:

• Partition is equitable and discretionary as to method (in kind versus sale), but
• The right of a co-tenant to obtain some form of partition is very strong.

Distribution of Proceeds and Adjustments

When partition by sale occurs, the proceeds are divided according to each co-owner’s share. Courts may adjust the distribution to account for:

• Necessary repairs or improvements made by a co-owner.
• Unequal contributions to expenses (taxes, mortgage payments).
• Rents or profits received by a co-owner in exclusive possession.
• Periods of ouster or wrongful exclusion.
• Costs of litigation or sale, if one party has caused unnecessary expense.

Key Term: Contribution
The right of a co-tenant who has paid more than their share of a common obligation (such as taxes or a mortgage) to reimbursement from the other co-tenants, often enforced through an accounting in a partition action.

Key Term: Operating Expenses
Necessary recurring charges on jointly owned property, such as property taxes, insurance, and mortgage payments.

Key Term: Third-Party Rents
Rental income paid by non-owners (for example, tenants) for use of the co-owned property.

Key rules:

• Third-party rents: Net rents (after operating expenses) received from third parties are shared in proportion to ownership interests.
• Operating expenses: Co-tenants must share necessary expenses (taxes, mortgage) proportionally. A co-tenant who pays more than their share can seek contribution or a credit in partition.
• Repairs and improvements: Handled differently from basic operating expenses.

In most exam questions, courts will not disturb the fractional shares (for example, 1/3 and 2/3) themselves; instead, they will use adjustments and credits to account for imbalances in payment and benefit.

Third-Party Rents

Rent received from a third party in possession of the property, minus operating expenses, is divided based on the ownership interests of the co-tenants.

If one co-tenant leases the property to a non-owner:

• That co-tenant acts, in effect, as an agent or manager for the benefit of all.
• The other co-tenants are entitled to their proportionate share of the net rental income.
• If the leasing co-tenant has already paid operating expenses from the rent, those are deducted before sharing.

If one co-tenant both occupies part of the property and rents part to outsiders (for example, a duplex), the general rule is:

• The co-tenant must share net rent from the rented unit.
• The co-tenant does not usually owe rent for their own occupancy unless there has been ouster or a specific agreement.

Failure to share rents can be remedied either in a separate accounting action or, more commonly, within a partition action. On the MBE, if you see a co-tenant collecting rent from outsiders and keeping it, always think: “In partition, that co-tenant will owe the other their share of net rents.”

Operating Expenses: Taxes and Mortgages

Co-tenants share responsibility for necessary operating expenses, such as property taxes and mortgage payments, in proportion to their ownership interests.

A co-tenant who pays more than their share of these expenses can:

• Bring an action for contribution in some jurisdictions; or
• More commonly, request a credit in a later accounting or partition action.

An important issue arises when one co-tenant is in sole possession:

• If a co-tenant is in sole possession, many courts will reimburse that co-tenant only for the portion of taxes and mortgage payments that exceeds the fair rental value of the property.
• The reasoning is that the sole occupant is already enjoying the benefit of living in the property, so they should not be able to both live there rent-free and force the out-of-possession co-tenant to subsidize carrying costs.

Example: If fair rental value is $1,000 per month and the mortgage plus taxes total$900 per month, the sole occupant is effectively paying less than market rent. Some courts will deny contribution altogether. If the expenses are $1,500 per month, the sole occupant might get contribution for the$500 per month in excess of fair rental value.

From the source materials:

• Each co-tenant has a duty to pay their share of taxes and mortgage payments.
• A co-tenant not in sole possession can always compel contribution after paying more than their share.
• A co-tenant in sole possession can compel contribution only to the extent that their payments exceed the reasonable rental value of the property.

The MBE typically tests the majority rule: limit contribution for a co-tenant in sole possession to amounts over fair rental value.

Repairs and Improvements

Key Term: Necessary Repairs
Repairs required to keep the property in ordinary, habitable, or functional condition, as opposed to optional upgrades or luxury improvements.

Key Term: Improvements
Voluntary alterations or additions to the property that increase its value or utility but are not strictly necessary to preserve the property.

General principles:

• Necessary repairs:

  • Co-tenants are expected to share necessary repair costs in proportion to their ownership interests.
  • Many jurisdictions allow a co-tenant who pays more than their share of necessary repairs to obtain contribution, often in an accounting or partition proceeding.
  • The majority view (based on modern authorities) allows an independent action for contribution for necessary repairs, especially if the paying co-tenant notified the others of the need for repair.
  • A minority view, closer to the common law, denies a separate right to contribution for repairs and limits the paying co-tenant to a credit in partition.
  • Notice to other co-tenants of the need for repairs strengthens the claim for contribution.

• Improvements:

  • There is no automatic right to reimbursement from co-tenants for voluntary improvements.
  • However, in a partition action, the improving co-tenant is credited with the increase in value attributable to the improvement, not necessarily the cost of the improvement.
  • If the improvement actually decreases the property’s value (for example, a bizarre addition that makes the house harder to sell), the improving co-tenant may bear that loss and may even be charged with the diminution in value.

If partition in kind occurs, the court will, where possible:

• Award the improved portion to the co-tenant who made the improvements; and
• Adjust the division with cash if necessary to equalize value.

If partition by sale occurs, the court will:

• Determine the sale price.
• Subtract costs of sale and common expenses.
• Allocate to the improving co-tenant any increase in sale price fairly attributable to the improvement.

On the MBE, classify expenditures carefully:

• Fixing a leaking roof or broken furnace: necessary repair (contribution allowed).
• Adding a swimming pool or luxury kitchen: improvement (no contribution, but credit for added value in partition).

Defenses and Limitations

Partition is generally a matter of right, but courts may deny or delay partition if:

• The co-owners have agreed not to partition for a reasonable, limited time.
• Partition would cause great prejudice without a compelling reason (for example, division would violate zoning or leave unusable parcels).
• The property is subject to a valid restriction on partition (rare and usually arising by agreement).
• The co-tenancy is a tenancy by the entirety, and only one spouse seeks partition.

Note that a mere desire by some co-tenants to keep the property, or sentimental attachment, is not a legal defense to partition. Even the fact that the property has been in the family for generations will not by itself defeat a partition action.

Courts may, however, consider the presence of a family home or family cemetery as one factor in deciding between partition in kind and partition by sale, if a workable in-kind division is available.

Because partition is equitable, traditional equitable defenses like laches (unreasonable delay with prejudice) and unclean hands (serious misconduct by the plaintiff) may be raised, but they rarely succeed in blocking partition altogether. The right to have the co-tenancy ended is very strong; equity primarily affects how partition is accomplished and how money is allocated, not whether partition occurs.

Effect of Partition on Improvements, Title, and Related Interests

Partition has important consequences:

• It terminates the co-tenancy.
• In a tenancy in common or joint tenancy:
  • Partition in kind results in each party owning separate parcels in severalty.
  • Partition by sale results in each party owning a separate share of the sale proceeds.
• In a joint tenancy:
  • A partition action severs the joint tenancy; the right of survivorship ends.
  • After partition, each party holds separate title (or a portion of the proceeds) with no survivorship.

If a co-owner has made improvements, the court may award that co-owner the increased value attributable to the improvement, but only if partition by sale occurs. If partition in kind occurs, the improving co-owner may be awarded the improved portion if possible.

This can significantly affect the final shares:

• In partition by sale, the court calculates the sale price, subtracts costs of sale, and then adjusts the net proceeds to:
  • Reimburse or credit co-tenants for operating expenses and necessary repairs.
  • Allocate the increased value of improvements to the improving co-tenant.
  • Account for rents received, including rent owed after ouster.

Because all of these adjustments occur within the partition case, partition often functions as a comprehensive final settlement of the co-tenants’ financial affairs.

Effect on Mortgages, Leases, and Liens

Partition interacts with other property interests:

• Mortgages and liens:
  • A mortgage or lien on an individual co-tenant’s undivided interest generally remains attached to that tenant’s share after partition.
  • In partition in kind, the lien typically follows the portion awarded to the debtor co-tenant.
  • In partition by sale, the lien may be satisfied out of that co-tenant’s share of the proceeds.
• Leases:
  • One co-tenant may validly lease their share to a third party.
  • The lessee steps into the shoes of the lessor and has the right to use the whole property (subject to co-tenants’ rights), but the lease cannot bind non-consenting co-tenants beyond the lessor’s interest.
  • Upon partition, a lease made by one co-tenant generally continues as to that co-tenant’s allotted parcel or share of proceeds, but cannot impair the rights of non-leasing co-tenants in their parcels or proceeds.
• Easements and covenants:
  • Servitudes, such as easements and restrictive covenants, usually survive partition and continue to burden or benefit the resulting parcels according to their original scope.

These details are rarely tested directly, but understanding them can help you avoid incorrect answer choices suggesting that partition automatically extinguishes mortgages, liens, or leases. It does not; it rearranges ownership but respects valid prior interests.

Exam Pitfalls: Ouster, Contribution, and Rent

Common traps on the MBE include:

• Confusing sole possession with ouster:

  • Merely living on the property does not create a duty to pay rent to co-tenants.
  • Look for explicit denial of access or demand for rent to find ouster.

• Misunderstanding adverse possession between co-tenants:

  • Long-term exclusive possession alone is insufficient.
  • There must be a clear repudiation of the co-tenancy communicated to the others.

• Mistaking improvements for necessary repairs:

  • New roof, structural repair, or fixing leaking pipes: usually necessary repairs.
  • Adding a pool, finishing a basement, or building a gazebo: usually improvements.

• Misallocating third-party rents:

  • Rent collected from a non-owner must be shared according to ownership shares.
  • The collecting co-tenant may deduct operating expenses before sharing.

• Overlooking the effect of sole possession on contribution:

  • A co-tenant in sole possession may receive contribution for taxes and mortgage only to the extent those costs exceed the fair rental value.

• Forgetting the strong presumption in favor of partition in kind:

  • On exam questions, partition by sale should be chosen only where physical division is impracticable or clearly unfair.

• Confusing tenancies by the entirety with joint tenancies:

  • Joint tenants can unilaterally seek partition.
  • Tenants by the entirety cannot; unilateral partition actions by one spouse will be dismissed.

• Misreading agreements restricting partition:

  • A finite, reasonable “no partition” clause is usually enforceable.
  • A perpetual, “no one shall ever seek partition” clause is usually invalid as an unreasonable restraint.

Worked Example 1.1

Three siblings inherit a house as tenants in common. One wants to sell, but the others want to keep the house. The sibling seeking sale files for partition. The house is a single-family dwelling and cannot be physically divided. What will the court likely do?

Answer:
The court will likely order partition by sale, since physical division (partition in kind) is not feasible for a single-family home. The court will prefer partition in kind if possible, but here the property is a single residential structure that cannot sensibly be divided into separate parcels of comparable value. The sale proceeds will be divided among the siblings according to their ownership shares, after any necessary adjustments (for example, if one sibling has paid all property taxes, that sibling may receive a credit). The fact that two siblings wish to keep the house does not defeat the third sibling’s unilateral right to partition; if they want to keep the property, they may bid at the sale or negotiate to buy out the third sibling’s share.

Worked Example 1.2

Two friends own a large tract of farmland as joint tenants. One friend has made substantial improvements to part of the land. The other friend files for partition. What is the likely result?

Answer:
The court will first consider partition in kind because farmland is typically divisible without destroying value. If feasible, the friend who made improvements may be awarded the improved portion, and any imbalance in value can be adjusted with money payments if necessary. The improving friend does not have a right to full reimbursement of the cost of improvements, but is entitled to the increase in value attributable to them. The joint tenancy will be severed by partition, so each friend will own their separate parcel in severalty. If partition in kind is not practical (for example, because only a small irrigated area is valuable and the rest is worthless), the court will order partition by sale and adjust the proceeds to account for the increase in value attributable to the improvements, crediting that increase to the improving co-tenant.

Worked Example 1.3

Two siblings own four acres of undeveloped land as tenants in common. One sibling owns a three-fourths interest; the other owns a one-fourth interest. Local zoning requires a minimum lot size of two acres for a buildable lot. The sibling with the larger share asks the court to partition the land into a three-acre lot for themselves and a one-acre lot for the other sibling. The other sibling asks for a partition by sale. What should the court do?

Answer:
The court should order a partition by sale. Because zoning requires at least two acres per buildable lot, a 3/1 split would leave one sibling with a non-buildable (and therefore far less valuable) one-acre parcel. Physical division would not be fair to all parties and would significantly reduce the value of the smaller parcel. In terms used by many statutes, partition in kind would cause “great prejudice” to the owner of the one-acre lot. A sale and division of proceeds according to the three-fourths and one-fourth interests is appropriate. This illustrates the principle that even though partition in kind is preferred, courts will order a sale when physical division cannot be done without substantial unfairness.

Worked Example 1.4

Two co-tenants own a rental duplex as tenants in common. One co-tenant lives in one unit and rents the other unit to a third party, collecting all the rent. That co-tenant also pays all the property taxes and the entire mortgage. The other co-tenant sues for partition and an accounting. How should the court adjust the proceeds?

Answer:
In the partition action, the court will conduct an accounting. The occupying co-tenant must share the net rents from the rented unit with the other co-tenant in proportion to ownership shares. For example, if they own 50–50, each is entitled to half the net rent (gross rent minus operating expenses such as taxes, insurance, and routine maintenance attributable to the rented unit). The taxes and mortgage payments are shared obligations; the paying co-tenant will receive contribution or a credit for the other co-tenant’s share of those expenses. Unless there was ouster, the occupying co-tenant usually does not owe rent for their own occupancy beyond any rent-sharing for periods of exclusion. If the fair rental value of the entire duplex is close to the amount paid in taxes and mortgage, some courts may limit contribution to amounts exceeding that fair rental value. The final distribution of sale proceeds, if the property is sold, will reflect these credits and debits.

Worked Example 1.5

Three friends own a vacation cabin as joint tenants. They sign a written agreement stating that no one will seek partition for 10 years. Two years later, one friend files a partition action. The others move to dismiss, citing the agreement. How should the court rule?

Answer:
The court should enforce the agreement and deny or stay the partition action. Co-tenants can agree not to partition for a reasonable, limited period, and a 10-year restriction is likely reasonable for co-owned vacation property. The agreement does not permanently bar partition and therefore is not an invalid restraint on alienation. Any friend may still transfer their share, and all three could jointly convey the entire property if they wish. After the 10-year period expires, any co-tenant will again be free to seek partition. On an exam, a finite “no partition for X years” clause is usually treated as valid and enforceable.

Worked Example 1.6

Two unmarried partners buy a home as joint tenants with right of survivorship. One moves out after a dispute; the other continues to live in the home, pays all taxes and mortgage payments, and refuses to sell. Five years later, the departed partner files for partition and contribution for half of the fair rental value of the home during those five years. There was no express demand to re-enter. What is the likely outcome?

Answer:
The departed partner has the right to partition. The court will likely order partition by sale because the property is a single-family home. In the accounting, the staying partner must share any third-party rent but usually will not owe rent for his own occupancy because there was no ouster—the departed partner voluntarily left and never demanded co-occupancy. The staying partner is entitled to contribution for taxes and mortgage payments, potentially limited to amounts exceeding the fair rental value depending on the jurisdiction’s rule for co-tenants in sole possession. The departed partner’s claim for rent will likely be rejected absent ouster or agreement. The joint tenancy will be severed by the partition, and the proceeds will be distributed according to the former joint tenants’ equal shares after adjustments.

Worked Example 1.7

Owner A and Owner B are tenants in common in a small retail building, each with a 50% interest. Without consulting B, A builds an expensive glass storefront that doubles the building’s market value. Later, B sues for partition by sale. At sale, the building brings $600,000; without the improvement it would have been worth$300,000. How should the court allocate proceeds?

Answer:
The court will first deduct costs of sale. Then, in the accounting, A will be credited with the increase in value attributable to the improvement, which is $300,000 (the difference between$600,000 and $300,000). The remaining$300,000 (reflecting the unimproved value) will be divided equally, $150,000 to each co-tenant. A will also receive the additional$300,000 credit, for a total of $450,000; B receives$150,000. A is not automatically reimbursed for the cost of the improvement, only for the added value. If A’s construction had decreased value, A would bear that loss and might receive less than half the unimproved value, depending on the jurisdiction’s approach to negative-value “improvements.”

Worked Example 1.8

Siblings C and D inherit Blackacre as tenants in common. C lives in the house and, without telling D, rents out the detached garage to a neighbor for $400 per month for three years, keeping all the rent. C sues for partition in kind; D counterclaims for her share of the rents. How should the court resolve this?

Answer:
Assuming Blackacre can be divided in kind fairly, the court will attempt partition in kind. In the accounting, the rent from the third-party tenant must be shared according to ownership shares. If C and D each own 50%, D is entitled to half of the net rent from the garage over the three years. C may deduct a proportional share of operating expenses related to the garage (for example, taxes, insurance, necessary repairs) before splitting the net rent. C does not owe rent to D for living in the house absent ouster or agreement. The partition judgment will award separate parcels or, if a sale is ultimately ordered, allocate sale proceeds after crediting D with her share of net rents.

Worked Example 1.9

Husband and Wife hold their residence as tenants by the entirety. Husband alone attempts to bring a partition action in order to force a sale to pay his personal creditors. Wife objects. What result?

Answer:
The court will dismiss the partition action. A tenancy by the entirety cannot be unilaterally severed or partitioned by either spouse acting alone. Neither Husband’s personal creditors nor Husband himself can force a partition. Only the joint act of both spouses, divorce (converting the estate into a tenancy in common in most states), death of a spouse, or execution by a joint creditor of both spouses can terminate the tenancy by the entirety. This illustrates the key distinction between joint tenancy (unilaterally severable and partitionable) and tenancy by the entirety (severable only by specified joint events).

Worked Example 1.10

Two cousins, E and F, own a lakeside lot as tenants in common. Their deed includes a clause: “No party shall ever seek partition of this property.” Fifteen years later, E files for partition by sale. F argues the action is barred by the deed. How should the court rule?

Answer:
The court will likely hold the partition restriction unreasonable because it is unlimited in time and purports to bar partition forever. Such an absolute prohibition is treated as an invalid restraint on alienation and is not enforceable. E’s unilateral right to partition cannot be eliminated permanently. The court will proceed to consider whether partition in kind is feasible; if not, it will order partition by sale and divide the proceeds according to the cousins’ ownership interests. At most, a court might construe the restriction as lasting for a “reasonable” period, but after 15 years that period has almost certainly expired for a simple vacation lot.

Exam Warning

Courts strongly prefer partition in kind unless it would be unfair or impractical. On the MBE, look for facts showing that physical division would cause substantial loss in value, violate zoning rules, or is not physically possible (for example, a single building, condo unit, or lot too small to divide).

Also watch for questions combining partition with accounting issues. If one co-tenant has paid all taxes or collected all third-party rents, the examiners often expect you to identify that these amounts will be adjusted in the partition action.

Revision Tip

Remember: Any tenant in common or joint tenant can force partition at any time, even if the other co-owners object. Tenants by the entirety cannot unilaterally partition. In a partition by sale, proceeds are divided according to ownership shares, but courts will make equitable adjustments for expenses, improvements, and ouster.

Key Point Checklist

This article has covered the following key knowledge points:

• Partition is the equitable remedy that allows a co-owner to force division or sale of real property, terminating the co-tenancy.
• Partition in kind (physical division) is favored unless impractical or unfair, such as when division would violate zoning rules or leave unusable parcels.
• Partition by sale is ordered if physical division is not feasible or would substantially harm the property’s value or treat owners unfairly.
• Any tenant in common or joint tenant may demand partition unilaterally; tenants by the entirety lack this unilateral right, and a tenancy by the entirety cannot be terminated by involuntary partition.
• Co-tenants may validly agree not to partition for a reasonable, limited time; such agreements are generally enforceable and are not invalid restraints on alienation. Permanent prohibitions are usually unreasonable.
• In a partition action, the court also conducts an accounting to adjust for third-party rents received, taxes and mortgage payments paid, necessary repairs, improvements, and periods of ouster.
• Proceeds from partition by sale are divided according to ownership shares, with equitable adjustments for expenses, improvements, exclusive possession, and any ouster.
• Necessary operating expenses (taxes, mortgage, insurance) are shared; a co-tenant who pays more than their share is entitled to contribution or a credit in partition, though sole possession may limit reimbursement to amounts exceeding fair rental value.
• Co-tenants have no automatic right to reimbursement for voluntary improvements, but the improving co-tenant is credited with the value added in a partition; if the improvement reduces value, the improving co-tenant may bear that loss.
• Sole possession by one co-tenant does not create a duty to pay rent to others unless there is ouster or an agreement to pay rent; however, rent collected from third parties must be shared according to ownership interests.
• Ouster requires exclusion or a clear denial of a co-tenant’s right to possess; once ouster occurs, the ousted co-tenant may recover fair rental value and the adverse possession clock may begin to run.
• Partition severs a joint tenancy and terminates the right of survivorship, converting interests into separate ownership in severalty or into tenants in common in the sale proceeds.
• Mortgages, liens, and leases generally survive partition; they follow the debtor co-tenant’s parcel in a partition in kind or attach to that co-tenant’s share of sale proceeds.
• Sentimental reasons for keeping the property, or the wishes of a majority of co-tenants, do not defeat a co-tenant’s right to partition.
• The main exam traps involve mislabeling repairs versus improvements, ignoring fair rental value limits on contribution for a co-tenant in sole possession, and failing to recognize that absolute prohibitions on partition are usually invalid.

Key Terms and Concepts

• Partition
• Partition in Kind
• Partition by Sale
• Co-tenant
• Tenant in Common
• Joint Tenant
• Tenancy by the Entirety
• Ouster
• Accounting
• Contribution
• Operating Expenses
• Necessary Repairs
• Improvements
• Third-Party Rents
• Agreement Not to Partition
• Equitable Remedy