Under the common law, any owner of property who owns an undivided concurrent interest in land can seek such a division.
Forced sales generally occur because owners of property are unable to agree upon certain aspects of the ownership.
That means that owners are not allowed to designate certain rooms as their own, but each element of the property is enjoyed fully by all parties.
If the property(s) cannot be divided and allocated to give each tenant a portion without spoiling the whole, the court will order a sale.
On the other hand, when a TIC property is partitioned, courts may be at liberty to consider unequal contributions to purchase price and adjust the tenants' distributions accordingly.
In either partition situation, tenants may request credits for unequal contributions to expenses incurred after taking deed to the property.
A master who is appointed by the court shall make such examinations and hold such hearings as may be necessary, giving reasonable notice thereof.
The amounts due the parties shall be charged as liens upon the property, to be paid in such manner and time as the court shall direct.
In D’Arcy v. Buckley, 71 Bucks Co. L. Rep. 167 (1997), two people purchased property as joint tenants with right of survivorship.
The Court held that, in the absence of fraud, the working of the deed operated to convey a one-half interest to each of the two joint tenants.
In many cases, a two-step process may be required: (1) a trial,[8] during which oral and documentary evidence is heard, and either affirms or denies the right of the moving party to effect a partition of the subject property(s), and, if affirmed, results in an interlocutory judgment (sometimes called a "first interlocutory judgment"), and (2) particularly in a contested partition, an evidentiary hearing (also a trial), usually after the property(s) have been appraised by experts, and during which trial additional oral and documentary evidence is heard, the property(s) are ordered divided and awarded proportionally where possible, including cash compensation where proportional division is impractical or impossible (sometimes called a "second interlocutory judgment").
The Partition Referee is given authority to execute documents as required to conclude a sale that is confirmed by the Court.
The UPHPA restructures the way partition sales occur in states that adopt the act, and generally includes three major reforms to partition law:[9] As of January 2023, 22 states and the Virgin Islands have passed the UPHPA, including Alabama, Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Iowa, Maryland, Mississippi, Missouri, Montana, Nevada, New Mexico, New York, South Carolina, Texas, Utah, and Virginia.
[11] The passage of the act in all 50 states could mitigate the impact of partition sales on heirs’ property owners.