Vail Daily column: Carving up the Christmas goose
December 4, 2012
Partition, not parturition, is the act of splitting. Although, I’m sure, one can feel much like the other. Parturition, so I’ve heard, feels much like splitting into discombobulated halves. And partition can seem, at times, like giving birth. For purposes here, though, think Moses and the Red Sea rather than being delivered of a child; that kind of splitting, as in dividing into parts.
Partition in the legal context involves the dividing of lands held by joint tenants, “co-parceners” or tenants in common, into distinct portions, so that they may hold them in severalty (that is, separately). Okay, but hold on just a sec. First, a little elaboration of our terms.
A joint tenant is most decidedly not a renter who smokes pot although the term seems apt. A joint tenant is instead one who owns property with another such that he has an indivisible interest in the whole thing that’s owned. If you think of a circle owned by two people in joint tenancy, both own the whole circle together. Dissimilarly, in a tenancy in common, draw a line down the center of the circle and each of the owners owns a distinct and divisible half.
Say you and I own a house together. We are joint tenants if each of us has an equal interest in the whole thing as opposed to tenants in common who each own a distinct half of the thing. Incidentally, joint tenants also enjoy a right of survivorship whereas tenants in common do not. What this means is that if one of the two parties who owns the home together dies, the survivor, by alchemy of law, automatically owns both his own share plus the half of the deceased without any special legal incantation having to be recited.
While a tenant in common can leave his interest to his co-tenant in common via a will, trust, or other device, inheritance of his interest by the co-tenant is not automatic and, except for certain blood relationships, does not transpire absent an expression of the deceased’s intent, such as in a will.
“Co-parcener” sounds like a couple of pious biddies who go to church together, doesn’t it? But, alas, not in the lexicon of the law. Co-parceney arises where several persons take ownership of land by descent from the same ancestor as one heir. Stated simply, co-parceners inherit land together from the same person and own that interest in the land together. In other words, I don’t own this little hillock and you don’t own the wetlands and riparian rights; we both have a sort of muddy inter-connected interest in, and title to, the whole thing. Can you, then, build the cabin that you’ve always dreamed of on the hillock that I’d like to claim as mine? Can I wade into the wetlands that I covet but which you consider to be your own? Not without the device of partition which carves up the land in a “this-is-yours and this-is-mine” sort of fashion. More on that in just a moment.
Finally, a word about “severalty.” Severalty indicates an estate (or ownership of land) that is held by a person in his own right only, without any other person being joined or connected with him. In other words, “it’s mine all mine.”
OK, then back to partition. Partition is any division of property (usually, but not always) real property between co-owners resulting in individual ownership of the interests of each. Partition can be compulsory (that is judicial) or voluntary.
In the Moses and the Red Sea example, once the seas have cleaved, partition might occur where one party owns the retreated west bank and another the east.
In a tenancy in common, since each party owns a divisible half, the matter of division is usually more easily accommodated. You or I can sell our halves without the other’s say-so.
Partition is a legal means of carving up the Christmas goose of property such that a fair and equitable outcome is devised and subscribed to under the law. It is the hopefully bloodless way that ownership is fairly parsed so that everybody walks away with an impartial portion of what is jointly claimed and keeps that portion as their very own.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, firstname.lastname@example.org or email@example.com