When co-owners cannot agree on how to divide property they own in common, any of them may bring an action for partition under Rule 69 of the Rules of Court, since no co-owner is obliged to remain in the co-ownership. The action proceeds in two distinct stages. The first stage determines whether a co-ownership in fact exists and whether partition is proper; the court examines the plaintiff's right and the parties' respective interests, and if it finds that the plaintiff is a co-owner and partition is proper, it issues an order of partition directing the parties to partition the property among themselves. If the parties agree, they may make the partition themselves by a proper instrument, which the court confirms. The second stage arises if the parties cannot agree on the partition: the court appoints not more than three competent and disinterested persons as commissioners to make the partition, commanding them to set off to each party in interest the portion to which they are entitled. The commissioners view and examine the property, hear the parties, and make a report; the court then hears any objections, and may accept, recommit, or set aside the report, and finally renders judgment adjudicating the specific portions to the parties. A crucial rule applies where the property cannot be divided without prejudice: if the commissioners find that the property cannot be divided without prejudice to the interests of the parties, the court may order the property assigned to one of the parties willing to take it upon paying the others the value of their respective shares, or, if no one is willing, order the property sold and the proceeds distributed among the parties according to their interests. The action also settles the accounting among co-owners for fruits and expenses. So an action for partition divides co-owned property through a two-stage court process, with commissioners where the parties disagree, and by assignment or sale where physical division would be prejudicial.
When Partition Is Needed
When co-owners cannot agree on dividing common property, any may file an action for partition (Rule 69), since no one must remain a co-owner.
Stage 1: Is Partition Proper?
The court determines whether a co-ownership exists and partition is proper, and issues an order of partition. If the parties agree, they partition by instrument, which the court confirms.
Stage 2: Commissioners, or Sale
If they cannot agree, the court appoints up to three commissioners to set off each party's share; they report, the court hears objections and renders judgment. If the property cannot be divided without prejudice, the court may assign it to one party who pays the others, or order it sold and the proceeds distributed.
Practical Takeaways
- Partition is a two-stage action (right to partition, then division);
- Commissioners divide it when the parties disagree;
- Indivisible property is assigned to one party or sold.
Frequently Asked Questions
How do I divide property when co-owners disagree? By filing an action for partition under Rule 69. The court first determines whether a co-ownership exists and partition is proper, then, if the parties cannot agree, appoints commissioners to make the partition.
What are the two stages of a partition case? The first determines whether a co-ownership exists and partition is proper, ending in an order of partition. The second is the actual partition, with commissioners appointed if the parties cannot agree, ending in a judgment adjudicating specific portions.
What if the property cannot be physically divided? The court may order it assigned to one of the parties willing to take it upon paying the others the value of their shares, or, if no one is willing, order the property sold and the proceeds distributed according to the parties' interests.
Who are the commissioners in a partition case? Not more than three competent and disinterested persons appointed by the court to view the property, hear the parties, set off each party's portion, and submit a report for the court's action.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
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