Contributor: Lee Grossman
Action For Partition Of Real Property
A partition of real property is the division of a parcel of land when it is owned by two or more people. The procedure for partition is governed by North Dakota Century Code chapter 32-16. When several people hold title to the same parcel of land, and one or more of them want to sell their interests, a partition action may be necessary. A partition action may be needed in the case of feuding siblings, marital property when the husband and wife are separated but not divorced, or any other situation where the owners of property cannot agree on the best way to divide their respective interests.
The partition action is started with a complaint and filed with the court. The complaint must identify the property to be divided and all the title owners to the property. The plaintiff can ask for several remedies from the court in the partition action.
One option is splitting the land equally between the parties. This may be favorable where there is a lot of agricultural land that has similar valuations and only a few owners. For instance, if four people equally own one section of land (640 acres), the court could divide the property into equal quarter sections (160 acres) for each owner to have alone. Another way of splitting land equally between the parties would be to split the land by the total value of the land on a per-acre basis. For instance, imagine the same four people equally own one section of land (640 acres), but the land is broken up in such a way that not all the land has an equal per-acre sales price. In this instance, it may be more favorable for everyone that some of the four owners receive more total acreage that is less valuable and the remaining parties receive less total acreage, but such land is more valuable.
A second option is providing the property to only one owner and paying the other owners for their fair share of the value of the property. For instance, if two people own a house and a residential lot, it would be extremely difficult to split that property into two equal parcels. Instead, one person would retain ownership of the property while the other person would receive cash in the amount of their percentage of ownership of the property.
A third option is selling the property altogether. The court could order that the property be sold and the owners would then split the proceeds of the sale in accordance with the property owner’s percentage of ownership.
The court will appoint a judicial referee to determine the value of the property and the respective rights of each owner. Often the referee is a certified real estate appraiser who can provide a reasoned value for the property. The referee’s report is provided to the court. If it appears to the court that the partition cannot provide compensation to the parties equally (that is, in accordance with their ownership shares), the court may order one party to make up for this inequality through additional compensation. All costs, including those for the appraisal and attorney’s fees, are to be split by the parties at the end of the partition action.
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