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Partition: What happens when you decide to live in Splitsville

Rohn Robbins
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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 or, in yet another context, “Hey, bye, I’m outta here.” That kind of splitting, as in dividing into parts.Partition in the legal context involves the dividing of lands held by joint tenants, co-parcener or tenants in common, into distinct portions, so that they may hold them in severalty. Okay, but hold on there just a sec. A little elaboration of our terms seems apropos. First, a joint tenant is most decidedly not a renter who smokes pot although the term seems apt. A joint tenant is one who owns property with another such that he or she 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 people 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 divisible half circle.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. This means if one of the two parties who owns the home together dies, the survivor, by some magic alchemy of law, automatically owns both his or her 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 or her interest to his or her co-tenant in common via a will, trust, or other device, inheritance of his or her 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. All co-parceners then constitute one heir, all sharing in a single, undivided estate (or ownership) in the land and being connected by a unity of interest and of title. 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 in 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. But more on that in just a moment.Parenthetically, today, in the modern American south, co-parceney is busily dividing up many of what were once were the great estates, largely where the now-deceased common ancestor failed to make a will.Finally, a word about severalty. Severalty indicates an estate (or ownership of land) that is held by a person in his or her own right only, without any other person being joined or connected with him or her. In other words, it’s mine all mine.Okay, 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 reared west bank and another the poised, retreated east.A quick example of compulsory (that is judicial) partition might help here. Suppose you and I own 70 acres of undeveloped land together as joint tenants. You want to sell. I don’t. Since we each own part of the whole thing, rather than owning separate halves, and since we’ve been at each other’s throats and can’t agree on anything anymore, we go to court. The court determines that the only fair thing to do is to split the parcel right down the center stripe. You get half amounting to 35 acres and I get the other thirty five. Of course, we could voluntarily agree to the same thing without the intervention of the court.In a tenancy in common, since each party owns a divisible half, the matter of division is usually more facilely accommodated.Partition, then, is a legal means of carving up the Christmas goose of property such that a fair and equitable outcome is devised and subscribed under the law. It is the hopefully bloodless way that ownership is fairly parsed so that everybody walks away with a 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. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard at 7 p.m. Wednesdays on KZYR radio (97.7 FM) as host of “Community Focus.” Reach Robbins at 926-4461 or robbins@colorado.net.Vail Daily, Vail, Colorado, CO


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