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Vail Law: Here’s what you need to know about partition

Rohn K. RobbinsVail LawVail, CO Colorado

Partition is the act of splitting. In the legal context, partition involves the dividing of lands held by joint tenants, or tenants in common, into distinct portions, so that they may hold them separately. Let’s elaborate on these terms.First, a joint tenant is most decidedly not a renter who smokes pot. 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 distinct and 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. What this means is that if one of the two parties who owns the home together dies, the survivor, by some 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 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? Not in the lexicon of the law. Co-parceney arises where several persons take ownership of land as one heir by descent from the same ancestor. All co-parceners then constitute one heir, all sharing 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. More on that in 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,” which 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.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 35. 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 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. His practice areas include: business & commercial transactions, real estate & development, homeowner’s associations, family law & divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO TV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at robbins@colorado.net.


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