Ownership of real property - Partition

Learning Outcomes

After reading this article, you will be able to explain the right to partition in co-ownership of real property, distinguish between partition in kind and partition by sale, identify who may demand partition, and apply these principles to MBE-style questions. You will also recognize common exam pitfalls and understand the practical consequences of partition orders.

MBE Syllabus

For MBE, you are required to understand the rights and remedies available to co-owners of real property, especially the right to partition. This article focuses your revision on:

  • The right of a co-owner to demand partition of real property.
  • The difference between partition in kind and partition by sale.
  • The procedure and consequences of partition.
  • Defenses and limitations to partition.
  • The effect of partition on improvements and expenses.

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.

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.

Types of Partition

There are two main types of partition:

  1. Partition in Kind: The property is physically divided among the co-owners, with each receiving a separate portion.
  2. 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.

Key Term: Partition by Sale
A court-ordered sale of co-owned real property, with the proceeds divided among the co-owners.

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.

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 with a right of survivorship; upon death, their interest passes to the surviving joint tenants.

Procedure and Court’s Role

A co-owner seeking partition files a lawsuit. The court will first consider whether partition in kind is feasible and fair. If the property can be divided without prejudice to the owners’ interests, partition in kind is favored. If physical division is impractical or would significantly reduce the property’s value, the court will order partition by sale.

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.

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.
  • The property is subject to a valid restriction on partition (rare).

Effect of Partition on Improvements

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.

Key Term: Ouster
The wrongful exclusion of a co-owner from possession of the property by another co-owner.

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 sale proceeds will be divided among the siblings according to their ownership shares.

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. If feasible, the friend who made improvements may be awarded the improved portion, or the value of the improvements may be credited in the division. If partition in kind is not practical, the court will order partition by sale and adjust the proceeds to account for the improvements.

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 or is not possible (e.g., a single building).

Revision Tip

Remember: Any tenant in common or joint tenant can force partition at any time, even if the other co-owners object.

Key Point Checklist

This article has covered the following key knowledge points:

  • Partition is the right of a co-owner to force division or sale of real property.
  • Partition in kind (physical division) is favored unless impractical or unfair.
  • Partition by sale is ordered if physical division is not feasible or would harm the property’s value.
  • Any tenant in common or joint tenant may demand partition unilaterally.
  • Proceeds from partition by sale are divided according to ownership shares, with adjustments for expenses, improvements, and exclusive possession.
  • Partition may be limited by agreement, but only for a reasonable time.

Key Terms and Concepts

  • Partition
  • Partition in Kind
  • Partition by Sale
  • Tenant in Common
  • Joint Tenant
  • Ouster
The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
AdaptiBar
One-time Fee
$395
Assessment Day
One-time Fee
$20-39
BarPrepHero
One-time Fee
$299
Job Test Prep
One-time Fee
$90-350
Quimbee
One-time Fee
$1,199

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal