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Partition: Dividing Joint Property Through the Courts

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Sometimes joint owners can’t agree on how to manage — or divide — their jointly-owned asset. The difficulty might arise with real estate, or a business, or even financial accounts. When they can’t agree on what to do, the result might be what the legal system calls a “partition” proceeding.

Joint ownership

Two — or more — people can jointly own property. They might hold the property as joint tenants, or as tenants in common. The difference is significant, but they are still joint owners.

Married couples can (in some states) jointly own assets as community property. Depending on the state and the title, community property might include a “survivorship” right. In such an arrangement the surviving spouse would receive the entire property on the death of the other spouse.

For this discussion, though, we must assume that the joint owners do not hold their property together until one owner dies. Instead, imagine that they can’t agree on whether to sell the property, how to improve it, who should have the use of the property — or other management issues.

Real estate, business entities, financial accounts, even vehicles — all can be jointly owned. If two equal owners can’t agree on how to handle a bank account, dividing it should be a simple matter of mathematics. But what if the property is a home, for example?

How partition works

When joint owners disagree about how to manage property, one option is to involve the court system. A complaining owner can ask the court to “partition” real estate. The court’s first approach will be to divide the property into roughly equal shares.

Imagine, for instance, two people who jointly own a 40-acre piece of farmland. The court might be able to draw an appropriate line to divide it into two 20-acre parcels. It might make more sense, though, to divide it into one 25-acre parcel, and a 15-acre parcel with better access, or views, or water. The court will attempt to make the two shares roughly equivalent in value. Partition may not be an exact science, or follow obvious rules.

Sometimes, though, it is impossible to divide the property. Imagine that two people jointly own a home. Perhaps it is a 2,500 square foot house on a half-acre lot; it would be impossible to draw any meaningful dividing line. In a case like that, the court then turns to ordering the property sold, and the proceeds divided.

Dividing the property

Once the court has decided it must liquidate the property, it then must turn to dividing the proceeds. Generally speaking, joint owners start from a premise of equal ownership — but that may not always be the case. Perhaps they had differing interests from the beginning, or one joint owner seeks an additional share as a result of contributions to the property.

Take, for example, the partition action involving an Arizona couple in a recent Court of Appeals case. David and Diane bought a home together in 1988, and lived in it for a quarter century. During that time they had children together, borrowed money against the house, improved it and paid ordinary house-related expenses, taxes and insurance.

David and Diane were not married. Actually, they had been married before they moved in together; they divorced in 1972 but lived together even before they bought their house. Though it may add color to the background, the fact that they were unmarried partners makes no difference to the legal outcome.

Diane eventually moved out and filed a partition action. Once the court calculated that they could not resolve their differences amicably, it ordered the home sold and the proceeds divided. Then the question became how to make the division.

David argued that he had paid $19,000 for homeowner’s insurance, $71,000 for property taxes and $183,000 for the initial purchase. He also claimed that he had made all of the mortgage payments over the years, and had spent another $70,000 on improvements to the house. The trial judge ruled that he could recover the insurance, taxes and initial payment. The judge divided the balance equally between the two owners.

The Court of Appeals

On appeal, David argued that he should get credit for all of the mortgage payments and for the improvements. The Court of Appeals analyzed the nature of partition, and of joint tenancy, and applied the principles to David and Diane’s circumstances.

When David and Diane first bought the property, there was an existing mortgage in place. David made most, if not all, of the payments on that first mortgage. The Court of Appeals agreed with him that he should get reimbursed for those payments — to the tune of about $212,000 total.

Shortly after they bought the home, David and Diane signed a note secured by a second mortgage on the property. David testified that he received the $100,000 loan and used it to pay off his own debts. He agreed that Diane had signed only because the bank required both owners’ signatures. The Court of Appeals ruled that the second mortgage was not Diane’s obligation, and David should get no reimbursement for those payments.

Home “Improvements”

The home improvements raised an interesting question. Normally, improvements by one joint tenant can be returned to the contributor on partition. More accurately, the joint owner might recover the value of those improvements. The test is how much the improvements increased the value of the property, not how much they cost.

The wrinkle in David and Diane’s case was that the testimony indicated the property was worth more as a lot than as a home. In the intervening years, the neighborhood had become a pricey, exclusive enclave — and any buyer would view the property as a “tear-down.” In other words, it didn’t matter how much David had improved the property, because it would be worth exactly the same amount. The court ruled that he did not get that money returned to him. Egizii v. Egizii, April 12, 2018.

David and Diane’s story depended on their unusual facts. That is common; partition is almost always a complicated, fact-driven calculation. Their circumstances provide some illumination of the legal principles involved. Not enough, though, for their case to be formally reported; the Court of Appeals decided that it would be an unreported “memorandum” decision. That means it does not have precedential value, even though it does indicate how another court might view similar facts.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.