Partition: Breaking up and Selling Your Joint Home

What to do when you own a home with your boyfriend or girlfriend

Whether you have been together for just a few years or for decades, if you own a home with your partner, and break up, what happens to the equity in the home? How do you force a division or sale? This problem is covered by Partition Law.

What You Need to Know

Partition Law is law aimed at giving courts direction in cases where partners/co-owners can no longer agree. Partition law has several key principles which the court will weigh and consider:

1.   Impossibility of Joint Possession: Partition is a legal remedy when it becomes impossible for co-owners to jointly possess and enjoy the property. This situation often arises due to disputes or impracticalities in shared ownership, such as breaking up or simply deciding to no longer live together.
2.   Tenancy in Common: In partition cases, co-owners of property, such as tenants in common, have the right to seek partition of the property. This is based on the principle that each co-owner has an undivided interest in the property, allowing them to enjoy and possess the whole property.
3.   Right to Partition: Under Michigan law, specifically MCL 600.3304(1), tenants in common have the right to partition the property. This legal provision allows co-owners to divide the property or its proceeds equitably.

Partition vs. Sale: Legal Standards

The court must consider the applicable law as well as concerns such as equity in deciding the legal path to pursue:

1.   Partition in Kind vs. Sale: The court must determine whether the property can be partitioned in kind (equally between the individuals) without causing great prejudice to the parties involved. If partition in kind is impractical, as in the case of a single-family home, a sale of the property may be ordered, with proceeds divided equitably among the co-owners.
2.   Equitable Division: The proceeds from the sale of the property are to be divided equitably between the co-owners. This ensures that each party receives their fair share of the property’s value, reflecting their ownership interest. See MCL 600.3336(2).
3.   Reimbursement and Liens: Co-owners may be required to settle any outstanding judgments or liens from their share of the proceeds. This includes reimbursement for any payments made by one co-owner on behalf of the other, such as mortgage payments or other fees.

Procedural Considerations

Once the court has decided whether to divide the property equally, order the sale of the property, or otherwise partition the property between the parties, the next step concerns how the partition will proceed:

1.   Court-Ordered Sale: The court may order the sale of the property if partition in kind is not feasible. This process involves listing the property for sale and ensuring that the maximum sale price is achieved, often with one party retaining exclusive use of the property during the sale period to facilitate this process.
2.   Costs and Attorney Fees: The party seeking partition may request reimbursement for costs, expenses, and reasonable attorney fees incurred during the partition proceedings and sale. This is supported by Michigan Court Rule MCR 3.403(C) and relevant case law, such as Silich v. Rongers, 302 Mich App 137 (2013).
3.   Judicial Oversight: The court plays a crucial role in overseeing the partition process, ensuring that the division of property or proceeds is conducted fairly and equitably. The court may also provide additional remedies deemed just and equitable.

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This summary provides an overview of the key principles, legal standards, and procedural aspects involved in partition cases. It highlights the rights of co-owners, the legal framework governing partition, and the court’s role in facilitating an equitable resolution.

If you co-own property with someone and it is no longer practical, or you are no longer comfortable owning with them, you should seek legal counsel with a Grand Rapids attorney experienced in property division. Don’t leave your future to chance. Contact our team today to schedule a confidential consultation and take the first step toward a brighter future.