When marriages dissolve, courts can divide the spouses’ jointly owned real estate as part of the divorce proceedings. In contrast, when unmarried couples owning real estate together split up, the division of their co-owned property is not so simple. This article explores the procedural avenues available for division of unmarried persons’ ownership interests in jointly titled real estate.
“Partition” serves as the mechanism for unraveling multiple ownership interests in real estate. It entails either the physical division of real estate by means of metes and bounds or an appraisal and buyout/public sale of the property.(1) Critically, statutory partitions are available only to persons who co-own property as tenants in common.(2) Where two persons hold title to real property as joint tenants with survivorship, they first must sever their joint tenancy in order to seek statutory partition.(3) A joint tenancy may be severed by either owner’s “recording of an instrument which results in his or her lifetime transfer of all or a part of his or her interest…”(4) Typically, one joint tenant will execute a quitclaim deed of his interest in the property to a third party. The third party then either seeks partition himself/herself or quitclaims the property interest back to the original joint tenant, so that the original joint tenant can seek partition.(5) The governing authorities contain no requirement of notice to the other joint tenant; nor do they set forth provisions for the other joint tenant to object to the severance of the joint tenancy with survivorship. Moreover, those authorities do not expressly require any judicial proceeding to sever the joint tenancy.
Partition can be either statutory or equitable. For statutory partition, any tenant in common of land for which no provision in a will or contract specifies how the land shall be divided may file a petition for a writ of partition in the superior court of the county in which the land is located.(6) The governing statutes require prior notice to the co-owner(s) of the property and provide the co-owner(s) with a right of objection.(7) Upon proof to the court of the required notice and the petitioner’s requisite title to the land, the court signs an order directing the clerk to issue a writ of partition directed to five county freeholders, who “shall proceed to make a just and equal partition and division of all the lands and tenements … in proportion to the shares claimed and to be most beneficial to the several common owners of the lands and tenements.”(8) If a party in interest (not the petitioner) convinces the court that “a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements made thereon, because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for,” then the court will order an appraisal and buyout/public sale procedure, rather than a physical division of the property.(9) A public sale will occur if the owner(s) obligated to purchase a petitioner’s interest fail to timely pay the designated buyout price.(10)
Equitable partition avoids the procedural conditions and requirements of statutory partition, but it is available only when “the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just.”(11) The party seeking equitable partition bears the burden of proving the necessity for equitable relief in order to justify the equitable decree. That is, the party seeking equitable relief must show that the remedy at law is insufficient or that peculiar circumstances render the equitable proceeding more suitable and just.(12) The mere fact that no interested party wishes to buy out the petitioner does not create grounds for equitable partition.(13) A request for an award of fair rental value in addition to mere partition, however, will render equitable partition appropriate.(14) If equitable partition is available, the court must “mold its decree to meet the general justice and equity of each cotenant.”(15)
(1) O.C.G.A. § 44-6-166.1(b). (2) See Mallard v. Mallard, 297 Ga. 274, 278, 773 S.E.2d 274 (2015). (3) See Reed v. McConathy, 299 Ga. 471, 472-473, 788 S.E.2d 769 (2016). (4) O.C.G.A. § 44-6-190(a)(3). (5) See Reed, supra, 299 Ga. at 472-473. (6) O.C.G.A. § 44-6-160. (7) See O.C.G.A. § 44-6-162; O.C.G.A. § 44-6-165. (8) See O.C.G.A. § 44-6-163; O.C.G.A. § 44-6-164. (9) See O.C.G.A. § 44-6-166.1. (10) Id. (11) O.C.G.A. § 44-6-140. (12) Burnham v. Lynn, 235 Ga. 207, 208, 219 S.E.2d 111 (1975). (13) Stone v. Benton, 258 Ga. 539, 540, 371 S.E.2d 864 (1988). (14) Larmer v. Larmer, 249 Ga. 500, 292 S.E.2d 71 (1982). (15) O.C.G.A. § 44-6-141.