When co-owners of real estate cannot agree on when or how to sell their property, each of the co-owners are entitled to petition for partition. A petition to partition is a lawsuit which asks a court to order the sale or division of the property. “Any person, except a tenant by the entirety, owning a present undivided legal estate in land […], shall be entitled to have partition in the manner hereinafter provided.” M.G.L. c. 241 § 1. A beneficiary of a trust, a shareholder of a corporation, or member of an limited liability company are not entitled to partition. See e.g. Minkin v. Commissioner of Revenue, 425 Mass. 174, 180 (1997). The probate courts and the land court has concurrent jurisdiction of all petitions for partition. M.G.L. c. 241 § 2.
The petitioner may request the sale or division of the subject real estate. Sale may only be ordered if the court finds that the land cannot be divided advantageously. M.G.L. c. 241 § 31. If the court orders sale, the land will be sold at public auction unless the court finds that the interests of all parties will be served by a private sale. Id.
After the petition is filed and the court has determined that the petitioner is entitled to partition, the court will enter an interlocutory decree that partition be made. Id. at § 10. After the decree issues, a warrant is issued to a disinterested commissioner. Id. at § 12. Once the commissioner’s return is confirmed, a final decree enters. The final decree is recorded at the registry of deeds and the decree has the effect of transferring the property. In a partition by sale, a deed is delivered by the commissioner which transfers the property.
The court will address other matters related to the partition. For instance, accounting issues including the expenses of the partition proceedings, including: counsel’s fees, fees for the commissioners, title exams, and preparation of plan. Fees and expenses will be shared by all co-owners in proportion of their interests.
While petitions for partition are common, it is less common that the entire process is completed. The added expenses which include attorney’s fees, commissioner’s fees, and the potential for below market sale prices convince most parties to agree to a sale prior to a final decree. If you are the co-owner of real estate and want to explore your right to a partition, contact Benjamin Cote to set an appointment.