Recently a past client of mine called. She had inherited several pieces of farm land that had been owned by her great-grandparents. The result, is that while the great-grandparents owned 100% of the land, at their death it was divided up equally among their children. The children then divided it among their children and so on until it got to my client who owned about 3% of a large farm. The great-grandchildren had finally come to a point where they no longer wanted to own the farm together. My client was calling because she wanted to know what her options were? What could she do with her 3%?
The answer is she could have the property “partitioned”.
When two or more people own land together we say that they are co-owners or that they own the property jointly. When any owner of the land no longer wishes to own the property together, that owner has the right to have the land “partitioned”. Partitioning the land means dividing the property.
Often “partitioning” the land happens voluntarily. If it was between two siblings, they can usually work out a way to divide the land equally. This is called a “partition in kind” where the land is physically divided to carve out a separate piece for each owner.
Keeping it simple: “partition in kind” means the land is physically divided with each owner retaining some portion of the land.
Sometimes, the land cannot be “partitioned in kind” or the parties are opposed to the land being “partitioned in kind”. The result is that the land has to be “partitioned by sale” with the proceeds divided proportional to the ownership of the land. Again, this often occurs voluntarily where siblings will decide to sell the family land. Yet, sometimes family members cannot agree or there is a need for judicial oversight. In these instances, a court-of-law supervises the process.
Keeping it simple: “partition by sale” is accomplished by selling the entire property and dividing the proceeds among the owners.
Proper estate planning can reduce the likelihood or need for partitioning in the future. Especially when it comes to farm land, it’s important to think ahead so that the farmland you have worked so hard to acquire or maintain, can stay in your family, rather than be sold on the courthouse steps.
Missouri Supreme Court Rule number 96 addresses “Partition of Real and Personal Property” and can be found here: http://www.courts.mo.gov/page.jsp?id=1019.