When a couple or business venture purchases a home or other piece of property, they’ll typically take title as joint tenants with rights of survivorship. This means that both individuals share ownership of the property—and when one person passes—this person’s share automatically transfers to the other owner. Sometimes, however, those who own real estate jointly may experience a breakdown of their relationship where they’re no longer able or willing to jointly own property together.
When this happens, a partition lawsuit may provide a solution. “Partition” actions involve a court partitioning (or splitting) property between joint owners. These cases are rarely brought and as a result, confusion abounds as to the proper procedure and steps to take with these unique lawsuits. The rules in Pennsylvania and New Jersey also differ, so it’s essential to partner with an experienced real estate attorney if you’re in the midst of a property dispute.
In Pennsylvania, partition actions are governed by Rules of Civil Procedure 1551-1574, which essentially divide the lawsuit into two distinct parts that require two distinct orders from the court.
In the first part of the lawsuit, the court must determine two critical questions:
If the court determines that the plaintiff is entitled to partition of the property, the court will enter an order under Rule 1557 directing partition and naming all co-tenants, along with their respective interests in the property. This order then must be recorded in the county recorder’s office, which will sever the joint tenancy. This means that the owners no longer own the property jointly anymore, but own divided interests in the property (otherwise known as “tenants in common”).
In Pennsylvania, it’s critical for this Part 1 order to be recorded, otherwise the lawsuit cannot proceed.
The case of Kapcsos v. Benshoff makes this clear, where the Superior Court of Pennsylvania held that “the entry and recording of a Part 1 order directing partition is essential to terminate a joint tenancy.”[1]
The severing of the joint tenancy also has important implications for each owners’ heirs. When individuals own property as tenants in common instead of as joint tenants, if one owner dies, this owner’s interests in the property automatically pass to his or her heirs.
When the Part 1 order directing partition is recorded, it’s time to advance to Part 2 of the lawsuit. In Part 2, the court will appoint a partition officer who works with the parties. It’s helpful to analogize Part 2 as divvying up a pizza. If the property were a pizza, the court determines the best way to slice it up and serve it.
This can be done in three ways:
Exactly how the property will be sliced up will largely depend on the partition officer’s report. The officer files his report with the court and the parties may object to the report within 10 days. It’s important to understand that a court will not second guess the facts determined by the partition officer and the court will defer to any credibility determinations made by the officer. Therefore, any objections (or “exceptions”) to the partition officer’s report should be legal in nature and not factual.
If parties are dissatisfied with either a Part 1 or Part 2 order, either order may be appealed to the Superior Court.
In New Jersey, partition actions are governed by a state statute rather than rules of civil procedure. See N.J.S.A. 2A:56-1, et seq.
Despite this difference, the critical questions remain the same:
The unfortunate reality of partition lawsuits is that they can be expensive and time-consuming. The upside of having savvy real estate counsel is that they may be able to negotiate and work with other joint owners to facilitate the disposition of the property by voluntary agreement rather than through litigation. This approach doesn’t require court costs or partition officer fees, and typically results in less attorney’s fees. Therefore, it’s critical to have experienced real estate counsel by your side while navigating a property dispute in Pennsylvania or New Jersey.
[1] Kapcsos v. Benshoff, 194 A.3d 139, 142 (Super Ct. 2018).
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Matt is an attorney in Obermayer’s Litigation Department, focusing his practice on real estate and business litigation. His passion for advocating on behalf of others inspired him to pursue a legal career....
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