The starting point is to understand that partition is a statutory right. Notice that under §5161, "A person having or holding real estate with others, as joint tenants, tenants in common or coparceners, may have partition thereof." When a party files a partition action, it triggers a process. The outcome of the process varies by the facts of the case, but the process will proceed!
In a nutshell, here is the procedure: A petition for partition is filed. Defendants may file answers. The only real defense is if "it is determined that the plaintiff has no right or share in the estate claimed." Otherwise "the court shall render judgment that partition be made and appoint three disinterested residents of the county as commissioners." The commissioners either determine how to equitably divide the property, or if they determine that the property is not divisible, they value the property and then give one or more parties the right to buy out the other (based on their fractional shares). If no one is willing to pay for and take over the other's share, the commissioners report back to the judge and the property is ordered sold. (This process has one step I hadn't mentioned to you earlier, that they first give one party the option to buy out the other before the property is ordered sold.)
Here is a copy of the relevant statutes:
Title 12: Court Procedure
Chapter 179: PARTITION OF REAL ESTATE
§ 5161. Who may have partition. A person having or holding real estate with others, as joint tenants, tenants in common or coparceners, may have partition thereof.
§ 5163. Complaint and summons; venue. A person designated in section 5161 of this title may, by serving a complaint and summons on all persons interested in the estate, bring an action to partition the real estate in the superior court of the county where the real estate or any part thereof is situated. The complaint shall state the title by which the real estate is held, the names of the several owners, as far as known, and a particular description of the premises.
§ 5169. Judgment for plaintiff; commissioners. When the issue is determined in favor of the plaintiff, or if the person interested defaults, the court shall render judgment that partition be made and appoint three disinterested residents of the county as commissioners. The commissioners shall make partition of the estate and set off each share of the several persons interested, according to their respective titles, and shall award to the plaintiff reasonable costs against the adverse party.
§ 5170. When defendant prevails in whole or in part. When, on trial, it is determined that the plaintiff has no right or share in the estate claimed, or that he holds a smaller share than alleged in his complaint, the adverse party shall recover against him reasonable costs. If the plaintiff holds a smaller share than claimed in his complaint, the judgment shall be that partition of the estate be made according to the title of the respective owners.
§ 5171. Notice by commissioners; oath; partition. The commissioners shall give notice to each party interested or to his agent or attorney, of the time when they will make such partition. Such commissioners shall be sworn and shall make partition of the estate by dividing and setting out to each owner his share thereof by metes and bounds.
§ 5172. Report; judgment. Having made partition, the commissioners shall make return to the court of their doings, with a description of each portion of the estate set off, and a certificate of their having been sworn. Unless cause is shown, such report shall be accepted by the court and judgment rendered thereon.
§ 5173. Recording of report and judgment; effect. A certified copy of the report of the commissioners, with the judgment of the court accepting the same thereon, shall be recorded in the office where by law a deed of such estate is required to be recorded, and, when so recorded, shall give such owner his share of the estate so set off in severalty.
§ 5174. Assignment or sale of estate-Assignment to party. When it appears that the real estate, or a portion thereof, cannot be divided without great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided he pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable.
§ 5175. Sale, when ordered. In case one of the parties interested will not take such assignment and pay such sum, the court shall order the commissioners to sell such estate at public or private sale.
§ 5176. Sale and conveyance. The commissioners shall sell the estate agreeably to the order and execute conveyances to the purchaser thereof, which shall be a complete bar against the owners and persons claiming under them.
§ 5177. Disposal of proceeds. The commissioners shall pay the proceeds of the sale to the several parties interested or their representatives, as the court directs, first deducting such sum as is allowed by the court for the plaintiff's costs, which shall be paid the plaintiff.
Here is a case that you should find interesting. Wilk v Wilk, No. 2000-316, is a 2001 Vermont Supreme Court case. The appeal was over the fact that the trial court had ordered the petitioner's 1/8 share transferred over to the 7/8 share owner in exchange for 1/8 of $125,000 (the value of the whole property as determined by the commissioners). Petitioner wanted the whole property ordered sold instead of an order that his 1/8 could be bought out by the 7/8 holder.
The Supreme Court said:
"Furthermore, as the Billings dissent noted, partition by sale is not a favored remedy. Our statutory scheme appears to make it the exception, rather than the rule, by placing it last in priority among the powers of a trial court: sections 5169 through 5173 provide that when a party owning a partial interest in a property seeks a partition, the property should be divided among those with interests in the property by a judgment of the trial court, which is then recorded in the registry of deeds. Only if the property cannot be physically divided conveniently may the court then consider the option of assigning the
property to one of the parties in exchange for an equitable sum. 12 V.S.A. § 5174. Finally, if one of the parties will not take an assignment, the court is compelled to order the property sold. Id. § 5175. In sum, under the statutory scheme, partition in kind is preferable to assignment, and assignment is preferable to sale."
http://dol.state.vt.us/gopher_root3/supct/173/2000-316.op at page 5
The fact that partition is a given (whether it results in a physical division of the property, or an assignment of an interest that results in an equitable buy out, or a court ordered sale) is what brings people to the bargaining table usually when one party lays down the gauntlet and files this action. It is a powerful negotiating tool. The parties can come to these same ends on their own, at less cost. But often they are not willing to believe that their co-owner is really serious when they say it is time to terminate the present arrangement.
For reference, here is a 2006 case (Begin v. Benoit (2006-030) 2006 VT 130) also be the Vermont Supreme Court, which cites back to the Wilks case in support of its holding:
From ¶ 6. We first deal with defendant's argument that in deciding the parties' respective interests upon partition, the trial court lacked authority to consider plaintiff's contributions to the home prior to acquiring a legal interest in the property. In Vermont, partition is governed by statute. 12 V.S.A. §§ 5161-5188. We have recently ruled, however, that the statutes dealing with partition of real estate "should be interpreted to give the trial court as many options as possible to achieve equity between the parties, including an expansive power to assign property to one of the co-tenants." Wilk v. Wilk, 173 Vt. 343, 346, 795 A.2d 1191, 1194 (2002). Furthermore, we noted that partition actions are equitable in nature and that in such actions, "courts should consider all relevant circumstances to ensure that complete justice is done." Id. (quoting 7 R. Powell, Powell on Real Property § 50.07[a], at 50-40 (M. Wolf ed. 2001)). Thus, we find that while plaintiff was entitled to partition under 12 V.S.A. § 5161 only upon acquiring her joint tenancy in the property, once she brought the partition action, the court was within its right to consider her prior financial contributions to the property in an effort to equitably divide the parties' interests."
The key line from this excerpt is "partition actions are equitable in nature and that in such actions, "courts should consider all relevant circumstances to ensure that complete justice is done"."
If a partition action becomes necessary and has to be seen through to the end, the court will "ensure that complete justice is done". But it will come at a cost of attorney fees and court costs, because the parties could have achieved that same end on their own had they cooperated.
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