PARTITION ACTIONS
What is partition lawsuit?
When joint real property owners cannot agree on what do with the commonly owned property, a partition action is the legal mechanism in Mississippi for dividing the respective interests. The partition of commonly owned property is started by one of the co-owners filing a complaint asking the court to divide or sell the property.
Except for homestead property, the right to partition property in Mississippi is absolute. Consequently, a restriction in a deed or operating agreement that precludes partition may not be enforceable. So almost any adult person who owns an undivided concurrent interest in real property can file a partition lawsuit.
There are two potential outcomes of a partition action. One is a partition in kind which is when the property is actually subdivided between the co-owners based on their respective interests. The other is a partition by sale which is when the property is sold and the proceeds are divided between the con-owners based on their respective interests.
A partition in kind is the preferred method of partition in Mississippi. However, this is often not practical for a many reasons. Notably, Mississippi does not recognize partition by allotment which is where the entire property is awarded to one person. Therefore, If it is determined that the property cannot be fairly divided, then a sale may be ordered with the profits being divided between the co-owners based on their respective ownership interests.
How do I object to a partition?
There is usually no legal basis for a co-owner to object to the filing of a partition complaint. However, a co-owner may object to a partition by sale if an equal division of the property can be made, or if an equal division is in the best interest of the parties. This may mean selling one part of the property and dividing the rest. Ultimately, whether the court orders a partition in kind or partition by sale is determined by the court based on the specific facts of the case.
Any party seeking a partition by sale has the burden of proving that an equitable division is not feasible or in the best interests of the parties.
Is a lawsuit necessary?
No. The partition of land held by adult joint tenants, tenants in common, and coparceners (i.e., persons sharing by inheritance), may accomplished by a written agreement setting out the particular part allotted to each, and properly recorded. The parties may also by written agreement submit the partition to arbitration. The written award is final when recorded. Miss. Code. Ann. § 11-21-1.
Are attorney fees recoverable?
In all cases involving the partition in kind or by sale, the court may award a reasonable attorney’s fee to the attorney or the plaintiff, to be taxed as a common charge on all the interests, and to be paid out of the proceeds in case of a sale, and to be a lien on the several parts in case of partition. Miss. Code. Ann. § 11-21-31.
Contact Us
The lawyers at Danks, Miller, & Cory have experience quickly and efficiently handling the most complicated partition actions. To discuss how our law firm can help you, contact us online or call our office locally at 601-957-3101.
Our law firm is conveniently located in downtown Jackson, Mississippi, just off I-55. Parking is available behind the building.