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Arizona Partition Actions

It is an unfortunate reality that our best-laid plans don’t always work out the way we imagined. This can be especially true when couples, friends, family members, or business partners decide to purchase real estate together. The co-owners or co-tenants may find themselves unable to agree about what to do with the property or whether the property is even worth holding on to. In Arizona, the law offers people who find themselves in this situation a possible solution: a partition action.

A partition action is a court action to either (1) physically divide a property owned by two or more parties (partition in kind), or (2) to sell the jointly-owned property and divide the proceeds (partition by sale). In Arizona, the right to partition by co-owners of property is created by statute. See A.R.S. §§ 12-1211 through 12-1225. Partition is an absolute right of property owners in the state, meaning that a person with an ownership interest in property may ask a court to force a sale or divide jointly-owned property at anytime. There are, however, some exceptions to this general rule. For example, if co-owners have a previous agreement about how or under what circumstances the property is to be partitioned, courts will usually give force to theses agreement and the property will be partitioned (or not) accordingly. See Cohen v. Frey, 215 Ariz. 62, 65, 157 P.3d 482, 485 (App. 2007).

Absent a prior partition agreement, a court will proceed with the statutory partition procedure. The next question the court will ask is: how should the property be divided, if possible, or, alternatively, how should the proceeds of a sale be distributed?  It is often the case, especially when the co-owners are friends or family members, that one of the co-owners has bore a greater share of the cost associated with the property than others. If this is the case, the paying co-owner has a right to seek reimbursement from the other owners. See Brown v. Brown, 58 Ariz. 333, 336, 119 P.2d 938, 939 (1941). This right is typically called “contribution,” and the paying co-owner is entitled to credit for payments made for the benefit of the common property against the sale proceeds. Id.

Additionally, if one of the co-owners has been kicked off the property or has had her rights to the common property otherwise curtailed by the other co-owners (often referred to as “ouster”), the ousted owner may seek rents proportional to their interest in the property from the other owners for the time during which she was exclude from the property. Moreover, depending on the circumstances, an ousted co-owner may not be otherwise liable for contribution from the time she was ousted. See Morga v. Friedlander, 140 Ariz. 206, 209, 680 P.2d 1267, 1270 (App. 1984); see also 51 A.L.R.2d 388 (Originally published in 1957).

However, it is important to keep in mind that partition actions are “equitable” actions. See Brown, 58 Ariz. at 336-37, 940 (1941). Meaning that courts asked to partition property will not simply plug numbers into a ready-made formula to determine who gets what. Instead, courts will use their discretion to try to come to a resolution that is fair and just. Courts using their equitable powers will look to all the relevant circumstances surrounding the action to try to come a fair distribution. To this end, some courts have held that if the paying co-owner also had exclusive possession of the property, her right to contribution from the non-paying co-owners may be offset by reasonable rents for the time during which she had exclusive possession, even though she would not otherwise be liable to her co-owners for her use of the jointly owned property. E.g., Martin v. Martin, 218 Mo. App. 617, 266 S.W. 336, 337 (1924).

Please note that the preceding information is informational only, and is not intended to be legal advice. If you, or someone you know is facing a partition action or would like to beginning the process of filing one, or any other real estate legal matter, contact the experienced Tucson attorneys at Harlow Spanier & Heckele PLLC. (520) 495-0869 or [email protected]

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