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Category: Real Estate Law
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Experience:  9+ years in handling Leases, Landlord-Tenant, Foreclosures,Mortgages, and Eviction cases
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Who is responsible for legal fees in a real estate partition

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Who is responsible for legal fees in a real estate partition law suit?

Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Is there any contract which involves the piece of property?

Customer: replied 4 years ago.



Thanks for your question. Contract? I am a partial owner of a property that has a 50% interest in ownership.

I certainly understand. What I am trying to get at is the legal reason for which the partition is being requested? Is this just a case of you wanting to sell and the other party not wanting to?
Customer: replied 4 years ago.
I see. :-) I am willing to either buy or sell my interest to the other party. However, after giving the other party substantial time to think this over she is unwilling to do either. I just want to get out of a partial ownership and get exclusive rights to the property or not be a partial owner at all.
I certainly understand now, thank you. In a case like this, it would be at the discretion of the court, to determine if the prevailing party should be awarded attorneys fees. It is not a situation where it has already been agreed upon by contract and the contract controls in this situation ( i.e. mortgage foreclosure). Here is a situation where you want to buy or sell and the other party does not. As such, it may be a case where the Judge requires each side to pay their own OR, you may be responsible for theirs if you lose, since you would essentially be trying to force them to do something, which they do not want to, without any legal basis to seek relief. I certainly understand your desire to either buy it or get out from under it but if the other side does not want to, the court may actually do nothing and let each person hold their interest, unless good cause or a legal basis is shown, to force the sale. If the property was being neglected or in need of repair and something needed to be done with it, there would be a basis to force the sale. However, if the other party thinks they have a good interest in the property and want to hold it and can not afford to buy you out, the Judge may not take any action.
Customer: replied 4 years ago.

Thanks for a great answer.


Here are few more details. The Other Party does not take care of the property, nor pays its share of the taxes and house insurance for the last 10 years. The property is in need of substantial repairs that I am unable to do because I am afraid that the other party will not pay its share for the repairs. I no longer wish to be a partial owner when the other owner is not responsible. I am no longer in communication with the other party. She is not returning my phone calls. Might the Judge in this case order for the other party to pay the legal fees if I will file a partition lawsuit?

The facts which you stated are certainly favorable to have it granted. In a case like this, the other alternative would be to sue them for half the cost and try and recover that way, if they are unwilling to sell. If they have not paid for these things in the past, they likely do not have the money to buy you out. As such, the Judge may just order a forced sale and allow a third party to come in a buy it, assuming there is equity in the home and it is not under water. Again, I wish I could tell you for sure if they would award attorney fees but it is not guaranteed, You have a basis to ask for them and it would be at the discretion of the Judge. If they are awarded and the other party can not pay, you can also ask that the proceeds from their potion of the sale, be used to pay them, so you will recover them.
Customer: replied 4 years ago.

Great! That is what I was thinking.


I am willing to buy out the Other Party. Now can the Judge order Partition by Appraisal instead of Partition by Sale or do I need specifically to ask for it?

You need to specifically ask for the relief sought. These are two different things. In one, you are buying out the other owner, so need to give them the market value of their share which the Judge would likely base upon having the property appraised. On the other hand, if it is sold, you would get what a seller is willing to pay. Often times, it is less then what it is appraised, since the price will be negotiated.
Customer: replied 4 years ago.
Let's say that the case is in court and in the process of negotiation ordered by Judge before mediation there is an appraisal done after which the other party agreed to sell their share to me. Also let's say that after the intitial appraisal it was discovered that the property is really in need of substantial repairs for example a house inspection revealed that. The price would have to be lowered so a second appraisal was done to reflect that all paid by me. Can these costs be recovered during a trial?

If repairs need to be made, it would be at the discretion of the court, if you could not agree to either sell the property " as is" or make the repairs and then deduct the cost from the sale price to pay you back. You would not want to invest more money then you need to but if the repairs would increase the value of the home above the cost, it is something which you would want to do and could just ask they there be recovered when it is sold and then the proceeds split. Thank you for allowing me to answer your question. Please let me know if you have any follow up questions or need any clarification on something which I stated above. I want to make sure your experience with the site was as pleasurable as possible and that you are satisfied with the help I
provided. If you have nothing further, please rate my answer so I can get credit for my help - I hope you found it to be Excellent!

Customer: replied 4 years ago.
Thanks! but that is not what I am asking. I am asking if the costs paid for appraisals can also be recovered during a trial?
Yes, they can be, if asked. Normally, a party asks for all costs and attorney fees to be paid, which is at the discretion of the Judge. In a perfect situation, you would not have to incur any cost in this litigation.
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Customer: replied 4 years ago.
Thank you so much to reconfirm that there is a possibility to recover all costs if the case goes to trial.

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