Partition Actions

What is a partition lawsuit?

When joint real property owners cannot agree on what to 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 deed or operating agreement restriction 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 subdivided between the co-owners based on their respective interests. The other is a partition by sale when the property is sold, and the proceeds are divided between the co-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 many reasons. Notably, Mississippi does not recognize partition by allotment, where the entire property is awarded to one person. Therefore, if 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 filing a partition complaint. However, a co-owner may object to a partition by sale if an equal property division can be made or if an equal division is in the parties’ best interest. 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 case’s specific facts.

Any party seeking a partition by sale has the burden of proving that an equitable division is not feasible or in the parties’ best interests.

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 will efficiently handle even 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.

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