In Rhode Island, partition actions are civil procedures handled by the Superior Court. They are typically used when co-owners of property disagree on its use, management, or disposal.
Below is a simplified general summary of the partition process:
Commencement: A partition action is commenced by filing a partition action in the Superior Court.
Partition by Metes and Bounds or by Sale: Depending on the circumstances, the court can order a partition by metes and bounds (dividing the property physically) or by sale (selling the property and dividing the proceeds). This is a discretionary decision by the court.
Including All Parties of Record: All persons who have an interest in title to the property at the time of the commencement of the action for partition must be included in the proceedings.
Allocation of Estate: The court has the authority to determine the distribution of the estate among the parties.
Standing to Compel Partition: To compel a partition, one must have a possessory interest in the property. In other words, the party seeking partition must have a legal right to possess the property.
Costs and Attorney's Fees: In a partition action, "costs" often includes attorney's fees. This is due to the "common benefit doctrine," which asserts that those who benefit from the partition should also bear some of the costs of achieving it.
Having a competent attorney to handle a partition action is crucial due to the complexity of the process and the need to ensure all legal requirements are met. Bilodeau Capalbo's experienced Rhode Island partition action attorneys can provide expert guidance and representation in such matters, ensuring your interests are well-protected throughout the process. Call Bilodeau Capalbo real estate lawyer today 401-300-4055,
What is a Partition Action?
A partition action is a legal remedy available to co-owners of real property, when they cannot agree on the use, management, or sale of the property. This action, as you mentioned, is brought to court to force the division or sale of the property, providing each owner with their fair share of the property's value.
Below are the key features of a partition action:
Partition of Real Property: A partition action applies to any real property co-owned by multiple parties. This includes buildings, homes, farms, and anything else attached to the land.
Follows RI Statute: Rhode Island legislation provides a clear Statutory Procedure to follow when ownership of real property is to be dissolved or changed.
Real Property Rights: Real property and its rights, including easements, rents, debts, profits, and all man-made fixtures like fences, go with the land. These are included in the "bundle of rights" that a buyer purchases.
Ownership Division: The division of ownership can become complex, especially when there are multiple co-owners. It's important that each owner fully understands what fraction or interest they own in the property.
Purpose of Property: Defining the purpose of the property—for profit, pleasure, or both—is also crucial. The original intent for the property (for example, farmed property) should be clearly defined to avoid future disputes.
A partition action can be a complex and potentially contentious process. Engaging the services of experienced attorneys like those at Bilodeau Capalbo can ensure that your interests are adequately represented and that the process is handled as smoothly and efficiently as possible.
How to Avoid A Partition Lawsuit by Understanding the Types of Ownership
Understanding the different types of property ownership help you avoid future disputes that may lead to partition actions. Here's a brief overview of the types of ownerships:
Joint Tenancy: This form of ownership is shared by two or more individuals who hold an equal, undivided interest in the property. A defining feature of joint tenancy is the right of survivorship. If one joint tenant dies, their share automatically passes to the surviving tenant(s), bypassing the probate process. This form of tenancy is established intentionally and should be clearly understood by all parties involved.
Tenancy in Common: Unlike joint tenancy, tenancy in common doesn't offer the right of survivorship. Two or more individuals own the property, each with their own distinct, separable share. When one tenant in common dies, their share doesn't automatically go to the other owner(s). Instead, it is passed down to their heirs, as stipulated in their will or by intestacy laws if no will exists.
Tenancy by the Entirety: This form of ownership is exclusively available to married couples in certain states, including Rhode Island. Similar to joint tenancy, it includes the right of survivorship, but it also adds protections against the actions of one spouse. For instance, one spouse cannot unilaterally sell or give away their interest in the property. Partition generally occurs as a result of divorce, converting the tenancy by the entirety into a tenancy in common.
To avoid potential disputes and partition actions, it's crucial to fully understand these forms of ownership and their implications before you buy or co-own property. If you're unsure or need legal advice, consider consulting with Rhode Island real estate lawyers at Bilodeau Capalbo 401-300-4055, we can guide you through the process and help you make informed decisions.
Bilodeau Capalbo, LLC’s Rhode Island Partition Action Attorneys represent clients in Woonsocket, Burrillville, Chepachet, Smithfield, Scituate, Coventry, West Greenwich, Exeter, North Kingstown, East Greenwich, Warwick, Cranston, Providence, Pawtucket, Central Falls, East Providence, Warren, Bristol, Barrington, Little Compton, Tiverton, Middletown, Portsmouth, Newport, South Kingstown, Charlestown, Hopkinton, Ashaway, Richmond, Narragansett, New Shoreham, West Warwick, Cumberland, Foster, Glocester, Johnston, Lincoln, North Providence and Westerly