Putting up the Partition: Breaking the Real Estate Stalemate

Whether in marriage or in real estate, the law does not force people into togetherness.   It is a frequent occurrence that two or more people own property jointly and either cannot get along or agree on how to manage, hold or otherwise deal with that property.   Thankfully, Massachusetts law offers an “exit strategy” for this potential mess, in the form of a petition for partition.   This petition can be filed in either the Land Court, or the Probate Court in which the property is located.    A person seeking partition has an absolute right to it,   though the price one must pay for it can often be significant.

The filing of a petition for partition results in the court appointing a “commissioner”–typically an attorney–to sell the property.    The commissioner typically engages a real estate broker,  and of course both of them get their fees paid from the proceeds of the sale.     The partition proceeding is known as an “equitable” proceeding,  which means that the court may,  upon the request of any of the parties,  adjust the amount of proceeds due the parties based on their relative contributions to the property.   So if, for example,  one of the parties occupied the property and paid no rent while another party consistently paid the mortgage,  taxes and insurance,  you can bet that the proceeds due the “freeloader” will be reduced and the proceeds due the “payor” increased from what they otherwise would have received.

These proceedings tend to be long and drawn out,  and are often characterized by squabbling, bitterness and anger.    In my experience they are among the category of cases that lend themselves most appropriately to mediation and settlement,   as one can reconstruct the contributions of the respective parties through forensic accounting,  thereby leaving the parties with a relatively undisputed factual record.

Prior to filing such petitions,  I try to bring my client together with the other owner(s) in an effort to craft solutions (e.g. a buyout by one owner of the other’s interest) that avert protracted partition proceedings.    Unfortunately these informal efforts often bump up against the emotionality of the parties, causing the petition to be filed.

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