Massachusetts Partition Process

The Supreme Judicial Court issued an informative decision last week concerning the Massachusetts partition process. The full decision, Battle v. Howard, is included below.

This case provides a good overview of dividing real estate among property owners and how the death of one of these owners can affect the process.

What is Partition?

Partition is a legal process for dividing property among joint owners (other than married couples). If two or more persons own real estate together, and one wants out, they can file a court action to order the division or sale of the property.

I have found partition cases to often occur among siblings who inherit property from a parent, with one family member no longer wanting the property. Partition cases are often common among former business partners, and non-married persons who were in a relationship and bought property together.

After the filing of a petition for partition (which can be done in Probate and Family Court or Land Court), the court assigns a neutral party, known as the commissioner, to oversee the sale process.

The Massachusetts partition process, importantly, is a matter of absolute right. If one property owner wants out of coowned property, they have a right to do so.

Death of a Property Owner

Battle concerned the interesting question of what happens if a co-owner of property dies after the start of the partition process.

In this case, the subject property was owned by two persons as a joint tenancy. This is a type of property ownership with a right to survivorship: if one owner dies, the other owner becomes the sole property owner.

This type of property ownership is far less common than a tenancy by common. In a tenancy by common, an owner’s share of the property would go to their heirs upon death, and not automatically to the other property owner(s).

In Battle, after the start of a partition action among two co-owners with a joint tenancy, one of these owners died. The question for the Court was whether the partition case could proceed or needed to be dismissed.

The Court determined that, in this scenario, the partition action needed to be dismissed. Because the death of one owner resulted in the other becoming the sole owner of the property, the heirs of the deceased owner had no right to continue the partition case.

Practical Implications

As stated above, partition is an absolute right, and it is unusual to see the dismissal of such a case against a party’s wishes. It is critical to note that this case’s outcome happened because the owners had a joint tenancy, rather than a tenancy by common.

Most property ownership in Massachusetts (among non-married persons) is through a tenancy by common. Here, if these two owners had a tenancy by common, the partition case would likely have continued, as the deceased owner’s heirs would have inherited the property, and been able to proceeed through the partition process.

Battle is an important reminder that co-owners of property need to be aware of how they decide to own property together, and what will happen if one owner dies before the other, or wishes to no longer own the property together.

If you need assistance with a partition matter, contact me for a consultation.