Forced Sale of a Home – Understanding Massachusetts Partition Cases
Real estate is commonly owned by multiple persons. It is not unusual for married couples, family members, and even friends to own real estate together, and share in the responsibilities and upkeep of the property. When everyone is fine with owning the home together, no problems exist. It becomes more difficult when one or more owners of the property wants out. When this happens, a property owner can begin a court action for a forced sale of a home, known as partition. While this post is aimed at multiple owners of a residential home, the same type of relief is available for all types of jointly owned real estate.
What is Partition?
Partition is a court case to divide jointly owned property. A partition case may be heard in Land Court (most common) or Probate and Family Court. Partition, importantly, is an absolute right of any property owner: if one owner wants to do a forced sale of a home, they can do so.
The Court will first determine the best way to divide the property, either through partition in kind or partition by sale. A partition in kind is the physical division of property. If the court can simply “split the baby” and give each owner a share of the property, this is the preferred outcome. Most of the time, particularly with single residential homes, this is not a realistic possibility. The other, and more common, form of partition is a partition by sale: the court orders that the home is sold, and proceeds divided among the owners.
Who Gets What?
A central job of the court in a forced sale of a home is determining who gets what. A court will not merely allocate the proceeds from a home sale simply based on each party’s ownership of the property. The court will consider whether one party contributed a greater share towards the initial purchase of the home and whether one owner made permanent improvements to the property. The court will also consider whether one party was responsible for paying the property taxes, insurance, and other expenses responsible with property ownership.
How to Succeed With a Forced Sale of a Home
The best way to succeed with the forced sale of a home is to try and prevent one of these cases from happening in the first place. A partition case often results in the owners getting much less than they would if they simply agreed to sell it on their own. Joint property owners can negotiate to “buy out” the other owner’s share of the home, or simply agree on a sale price for the property. An experienced attorney can help you determine if this is a possibility or, alternatively, help you succeed in a partition case.