Vail Daily column: Understanding partition
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). OK, 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 increasingly 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, then the survivor, by the alchemy of law, automatically owns both his/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? 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.
Parenthetically, today, in the modern American south, co-parceney is busily dividing up many of what once were the great estates, largely where the now-deceased common ancestor failed to make a will. Predictably, there’s a really big ‘un now in Texas.
Finally, a word about “severalty.” Severalty indicates an estate (or ownership of land) that is held by a person in his/her 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.
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 easily accommodated. You or I can sell our halves without the other’s say-so, presuming someone wants to buy.
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. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.
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