What is a partition? A partition is a division of land by a court between two or more tenants in common.
What is a tenant in common? Tenants in common are joint owners of real property that have an equal right to possession of the whole property. Regardless of the percentage of ownership, each tenant in common has an undivided right to the whole property.
FOR EXAMPLE, if Dolores wills a piece of property equally to Ted and Sarah, they become tenants in common on the property. Ted and Sarah each own only half of the property by themselves, but Ted and Sarah each have the right to use the entire property.
North Carolina recognizes two types of partitions: (1) partitions in kind and (2) partitions by sale.
What is a partition in kind? In a partition in kind, the property is physically divided up between the tenants in common according to their percentage of ownership. Courts draw a “line in the sand” to separate the common property into equal parcels for each co-tenant.
If Ted requested a partition in kind, then the property he inherited from Dolores with Sarah would be equally divided. Ted would receive half of the land, and Sarah would receive the other half. The land would be divided so that Ted and Sarah each possess an equal but separate portion of the property because they were equal co-owners before the partition.
What is a partition by sale? Partitions by sale divide the property according to the interest the tenant in common owns. However, instead of dividing up the real property itself, the property is sold and the proceeds are distributed to the tenants in common.
If the land that Ted and Sarah inherited from Dolores is partitioned by sale, then the land would be sold. After paying the expenses of the sale, Ted and Sarah would each receive 50% of the remaining proceeds because they each own 50% of the property.
North Carolina favors partitions in kind over partitions by sale. As a general rule, tenants in common are have a right to a partition in kind so long as it can be made fairly.
If the partition by sale cannot be made without injury to one or more of the tenants in common, then courts may order a partition by sale. However, the party seeking the partition by sale has to prove that a partition sale is necessary to prevent injury to at least one of the tenants in common.
Some properties are simply incapable of partition in kind. If the property cannot be partitioned without destroying the value of the property, then a partition sale would be appropriate. A residential house on a ¼ acre lot likely could not be divided by partition in kind, so a court would probably order a sale.
If Ted asks for a partition by sale, he would have to prove that his share of the property from a partition in kind would be worth less than the proceeds he would receive from a partition sale. If he proves that his half of the land from a partition in kind would be worth $40,000 but he would receive $60,000 from the proceeds of a partition sale, then the court could allow the partition sale. Ted would be injured by a partition in kind because the amount he would receive from a sale would be $20,000 more than the value of the divided land.
North Carolina partition attorneys Kirk Sanders and Ben McManus at Hendrick Bryant have experience litigating partitions. If you have a partition matter, contact the North Carolina partition attorneys at Hendrick Bryant today at (336) 723-7200 to set up an appointment to discuss your matter.
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Partition in kind vs Partition by sale