Joint owners of real estate can run into serious challenges if they have different goals for the property. For example, suppose a son and daughter inherit their parents’ home, and one wants to live in it while the other wants to sell it. Or suppose two friends invest in a rental property together, but sometime down the road one of them decides being a landlord just isn’t for him and wants to sell the property against the other’s wishes. Or maybe two brothers have owned the family farm for decades, but now one wants to scrap farming and begin developing residential subdivisions. In such circumstances, a partition of the jointly owned property may be necessary.
A partition is a legal term used to describe the act of dividing up a single piece of real estate between the various owners. When parties seek a partition, the judge’s goal is to divide the property based on the parties’ proportionate interests, which the court cannot properly do at times based on the circumstances. For example, it may be easy to divide up undeveloped land, but a judge probably cannot equitably divide between multiple owners a single residence that sits on a property. If a partition isn’t proper, the court can have the property sold and then divide the proceeds between the parties. This route is generally much easier than dividing portions of real estate.
In Idaho, the process for partitioning property is governed by statute. The basics of this statutory process, which is not incredibly simple, is summarized below:
1. The Complaint and Summons. One of the owners of the property must file a complaint with the court. The complaint is the legal document that begins the partition process. It must list all known owners of the property and any party with an interest in the property, such as lienholders. A summons from the court must be sent to each of these parties. When a necessary party to the proceeding cannot be located, the court can authorize notifying this party by publishing the summons.
2. The Answer. All interested parties who receive a summons must file an answer to the complaint that either confirms or waives their interest in the subject property.
3. The Trial. The court will resolve through a trial any dispute regarding the underlying facts and the alleged interests of the parties in the property. Also, the judge will determine whether a partition can be accomplished without greatly harming one or more owners. If a partition will result in an inequality, he can still proceed with a partition but provide compensation to the party who gets the less favorable parcel following the partition. However, the judge may determine that a partition simply won’t work and that selling the property and dividing up the proceeds between the owners is a better, more equitable outcome.
4. The Referees. If after the trial the judge orders a partition, he then appoints three “referees.” Referees are a type of quasi-judicial officer—an extension of the court. It is their job to get on the ground, investigate the property, conduct surveys when necessary, and ultimately provide a proposal or report on how to divide the property into shares for each of the owners. (The referees can also be ordered to perform a public auction for the sale of the property when a partition is not proper.)
5. The Final Judgment. After receiving the referees’ report regarding a proposed partition, the judge will confirm, modify, or set aside the report. He can also appoint new referees or send the referees back to try again. When the judge confirms the report and decisions of the referees, this order becomes a binding judgment on all the interested parties, with some limited exceptions.
6. The Division of Costs. After the sale or partition is wrapped up, the court will order the various parties to pay their share of the costs, including attorney fees and the reimbursement to the referees for their services. This division of costs may be included and specified in the final judgment.
This legal process seeking a partition is only necessary, of course, if the co-owners to the property cannot reach a resolution outside of court. Most lawyers will recommend resolving the division of the property outside of court since legal battles are generally much more expensive than out-of-court solutions.