John J. Joseph
Breaking Up Is Hard to Do: Especially if you own Real Estate together and Aren’t Married.
Breaking up any type of relationship can be difficult, but add the ownership of real estate to the mix and it can become even more troublesome. Domestic Relations Court has the ability to decide the equities and disposition of real estate between separating or divorcing spouses, but what about unmarried individuals? Where can they turn to resolve differences over the ownership and disposition of jointly owned real estate?
This has been a recurring problem that this firm has been called upon to resolve many times both in the heterosexual and same sex relationships. The issues are the same. If we are lucky enough to represent one of the parties prior to the acquisition of the real estate, we are able to make recommendations, such as the preparation of an agreement regarding the disposition of the real estate or the use of various legal entities to hold title. Unfortunately, more often than not, we are not representing one of the parties prior to ownership, and are presented with the problem when the break up is occurring between the joint owners.
Assuming everything else is equal, if the parties are in agreement, resolving it is likely to be easy. Resolution becomes a matter of dealing with the conveyance, any existing mortgage, and dividing of the equity in the property. However, with most breakups, agreement between the parties has long past. We then must determine the goals of each of the parties, and devise strategies to obtain the best outcome. When all else fails, litigation may be the course that needs to be followed.
The law can be slow in evolving to fit the circumstances that exist in present day society. That is the case with resolving disputes over unmarried joint owners. A Partition Action is a law suit which has its beginnings in the common law. It was used in the days that farms passed down from the farmer to his sons. When the sons could not agree on how to run the farm together, one or more of them could commence a partition action, asking the court to fairly divide the farm between the brothers.
Partition Action exists in the codified law of today. However, it is still cloaked in the garb of the common law, with a focus of dividing the farm amongst joint owners. Unfortunately, a Partition Action is like an old remedy for a new disease, and often does not work perfectly in the urban setting. That is, not unless you want the court to divide an urban house in half like in the movie War of the Roses, with Michael Douglas and Kathleen Turner.
A Partition Action can ask that the property be sold if it is determined that it cannot be divided. Certainly this is the usual case for a residential urban property. Each of the parties has an opportunity to purchase it for the appraised value. If neither elects to do so, the property is sold at auction.
We have utilized the Partition Action to force the issue with a recalcitrant party who refuses to act. The good news for the party seeking this remedy is that the court can award attorney fees to the Plaintiff who commences the action.
We find that each client’s case requires thought and analysis to develop the right strategy to seek the desired result. Often we will combine the Partition Action with other counts containing other legal theories. I analogize this to a chemotherapy cocktail to kill the specific strain of cancer. Clients going through this process with a terminating relationship seem to like this analogy for some reason.
A Partition Action should not be filed by a novice. A thorough understanding of the process, and the consequences and risks must be understood. Our experience is that the Court itself does not know or understand this type of case and must be educated through the process. Although there can never be a guarantee that it will happen in every case, the good news is that we have seen most parties coming to their senses when this action gets filed, and the differences are resolved.
For Selected Statutes Governing Partition Actions click the source link below.