Real Estate Law
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Persons can be compelled to partition their land:
Tenants in common, survivorship tenants, and coparceners, of any estate in lands, tenements, or hereditaments within the state, may be compelled to make or suffer partition thereof as provided in sections 5307.01 to 5307.25 of the Revised Code.
The content of the petition is governed by statute:
A person entitled to partition of an estate may file his petition therefor in the court of common pleas, setting forth the nature of his title, a pertinent description of the lands, tenements, or hereditaments of which partition is demanded, and naming each tenant in common, coparcener, or other person interested therein, as defendant.
The Court orders partition:
If the court of common pleas finds that the plaintiff in an action for partition has a legal right to any part of the estate, it shall order partition of the estate in favor of the plaintiff or all interested parties, appoint one suitable disinterested person to be the commissioner to make the partition, and issue a writ of partition. The court on its own motion may, and upon motion of a party or any other interested person shall, appoint one or two additional suitable persons to be commissioners. If the estate to be partitioned extends beyond the county in which the action is commenced, the court may appoint a separate commissioner or commissioners, not to exceed three, to make the partition of that portion of the estate located in the other county.
Survivorship tenants are treated as tenants in common:
If partition is granted among survivorship tenants, the court shall determine the share to which each is entitled as if the tenants were tenants in common.
Appointed commissioners equitably divide the land:
In making a partition, the commissioner or commissioners shall view and examine the estate and, on their oaths and having due regard to the improvements, situation, and quality of the different parts, set it apart in lots that will be most advantageous and equitable.
If the commissioner or commissioners set the estate apart in lots, it shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.
The Parties can agree to Partition the land amicably:
Before a writ of partition is issued under section 5307.04 of the Revised Code, the person of whom partition is demanded may appear in the court of common pleas in person or by attorney and consent to a partition of the estate agreeable to the prayer and facts set forth in the petition, which amicable partition, when made and recorded, shall be valid and binding between the parties to the partition. In cases in which a requested partition is consented to under this section and in all cases in which the lands are divided among the parties by the commissioner or commissioners, the court shall order the sheriff to execute and deliver a deed to each person entitled to a deed for the portion set off and assigned to the person. Land divided pursuant to this section shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.
If the property cannot be divided, it is appraised and a party may elect to take it at the appraised value:
When the commissioner or commissioners are of opinion that the estate cannot be divided according to the demand of the writ of partition without manifest injury to its value, the commissioner or commissioners shall return that fact to the court of common pleas with a just valuation of the estate. If the court approves the return and if one or more of the parties elects to take the estate at the appraised value, it shall be adjudged to them, upon their paying to the other parties their proportion of its appraised value, according to their respective rights, or securing it as provided in section 5307.10 of the Revised Code.
If the parties do not elect to take the property it can be sold at public auction:
If no party elects to take the estate, at the insistence of a party, the court of common pleas may order a sale of the estate at public auction by one of the following:
(A) The sheriff who executed the writ of partition or the sheriff’s successor in office;
(B) An auctioneer who is licensed under Chapter 4707. of the Revised Code and who is qualified under section 4707.021 of the Revised Code to conduct an auction of real property.
The sale is similar to a foreclosure sale, and cannot be sold for less than two thirds of the appraised value:
(A) A sale of an estate under section 5307.11 of the Revised Code shall be made as follows:
(1) If the sale is made by a sheriff, the sale shall be made at the door of the courthouse, unless for good cause the court of common pleas directs it to be made on the premises. The sale shall be conducted as upon execution, except that it is unnecessary to appraise the estate.
(2) If the sale is made by a licensed auctioneer, the sale shall be made pursuant to Chapter 4707 of the Revised Code.
(B) No property shall be sold for less than two thirds of the value returned by the commissioner or commissioners.
One party may obtain his or her share of rents and profits of the property received by the other party.
One tenant in common, or coparcener, may recover from another tenant in common, or coparcener, his share of rents and profits received by such tenant in common or coparcener from the estate, according to the justice and equity of the case. One coparcener may maintain an action of waste against another coparcener. No coparcener shall have any privileges over another coparcener, in any election, division, partition, or matter to be made or done, concerning lands which have descended.
I am not sure what happened in the return answer you gave me but when it was transmitted it was sent overtop of the original page I sent to you when I asked the question. All I can see is two type written pages on top of each other. I can read my question in the background behind your answer but I can not read your answer as most of the letters are on top of my question. I have never seen this done before in transmittals. I am not sure what happened. If you resend your answer to me will it be on top of the original question again? Can we do anything about this? Sorry for he inconvenience.
thank you for resending it....it came through this time......I read all of it and it addresses many circumstances that do not pertain to my situation so I was wondering if I could be specific about mine. I want to stay married but just want the mortgage debt off my name so I do not loose my rental property if he dies. If he bucks it, and I push the issue, can he stop me? I think you said no. If he calls the realtor and tells then to take it off the market are you telling me I have to take him to court to push the issue and let a judge make the decision and determination of how much the property is worth and how much I am to get? My husband has a large income and mine is small but right now I have had to evict my tenants and I have no income at all. I have one law suite pending right now against one tenant as they trashed the unit before they left and I am corresponding with their attorney and trying to settle out of court but I have a court date set for Nov 5th to evict the other one and they are not paying rent at this time. I currently have no income to petition the courts. My name is XXXXX XXXXX his checking account and I spent all my savings on remodeling the repairs of the one unit. Off the cuff....is he entitled to part of the law suite money since he will not pay any of the mortgage or repairs? This property was mine before we were married and he has not had any involvement in the property at all since we were married, financially or sweat equity. How do I operate without any money or am I stuck?
thank you for the info but I have a couple of more questions.....I have asked him to refinance since the rates are so low. If he refinances and puts the mortgage in his name only am I free from any prior responsibilities? In his assuming the entire loan free me from the previous agreement or can he bring it up in a divorce? It would protect me in his death wouldn't it? I would be asking for my name to be left on the deed as we have gas royalties and I do not want to loose that income. They are going to drill soon and we have not gotten any check yet. Will I loose my gas royalties in a divorce? or since it is joint property I get to keep them?
WOW!!! thank you for being so thorough....but botXXXXX XXXXXne is this,.....I am screwed weather he dies or we end up divorced!! you have been wonderful and made me aware of situations that I was not even thinking of....he has put me in a loose loose situation.....and to think just a couple of years ago I was set financially to retire at age 50 with no debt.....he told me I was a nothing and he was going to grind me into a nothing. I was a nurse and he took that from me..another long story....and now he will take all my rental properties as well....that is how I got them....I used my nursing income.....he has taken both of my sources of income from me.......and put me in so much debt I will never get out. One last question.....the reason I was wanting my name off the cabin also was because he will not do any of the repairs and the logs are rotting on their foundation. I have asked him to fix them and he won't ....I am responsible for half the repairs since my name is XXXXX XXXXX deed and mortgage......for him to put out $50,000 is a drop in the bucket....for me it was a lifetime of savings.....can I sue him for this neglect? will that hold any weight in court in asking to be excluded from any of the costs to repair or be excused from any of the losses we may incur in the sale since I have been pushing for 6 years and he just bucks me and I pay for all the minor repairs? Where do I stand on all of this?
You have explained this better than anyone I have ever talked to.....thank you so much.....but let me make sure I am understanding this right....are you saying since I owned my rental property before I was married and I have kept it completely separate from our marital assets and income and he has not put a penney into it it is still mine in a divorce? the property has paid for itself over the years and he does not get his hands dirty if you get my drift......and half of his 401 K is mine?...any amounts he has put into in since we have been married? Am I understanding you right?
the income the rental property produced ....you said is marital property..is he going to be able to ask for half of the income it produced? I know this sounds kind of bizzare but why can he ask for my source of income but I can not ask for his paycheck? or have any right to it?
am I going to have to repay him half the rental income I have received over the marriage? and also, his 401 K is put into a trust for his son,,,,will that affect my rights any?
you have been beyond wonderful....thank you so much......I lost my nursing career due to a physical injury inflicted by him and have not been able to go back to work as a nurse since then,...can I ask for alimony based on my nursing career instead of my rental income or do they look at the combined income I had from both incomes to determine alimony?
WOW!!! thank you for that tidbit of truth!! I talked to two other attornies not from Just Answer and they told me alimony is based on what I made as if he would have to replace my salary and you are telling me to make less is better.....thank you so much..they acted like the more I made the more he would have to replace and to make the numbers high as I could. Am I understanding this correctly?
thank you so much for everything,,,,,you have explained things better than anyone I have spoken to...ever...inside this web site or outside. it gives me knowledge to know what to go on and how to make safe decisions and your advice on how to handle all of it is great. thanks again...blessings......
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