Partitioning Real Estate by Force in Arizona

By February 13, 2020 Real Estate
Partitioning Real Estate by Force in Arizona

It is not uncommon for more than one party to purchase a parcel of real property for any number of reasons. Sometimes, in the course of the co-ownership, one of the parties will decide that they want to get out of the ownership situation—to remove their names from the title and the mortgage, preferably by selling the property. But what can that party do when the other co-owners do not want to sell the property? Does the law effectively lock the first party into owning property when they do not want to?

Arizona law has provided a solution to this conundrum. Under A.R.S. 12-1211, a co-owner party may divest their ownership interest in a parcel of real property by means of something called a compelled partition. The term “partition” usually conjures images of the actual breaking apart of property—and in some cases, this holds. How it goes is that the co-owner wishing to divest themselves of the property may (by petitioning the Superior Court of the county in which the property is located) cause the property to be sub-divided, so that they can sell their portion of the property. But partition may occur in another sense. After holding a hearing to determine the respective interests of the various co-owners and entering a judgment confirming its findings, the Court may determine that the whole property must be sold, so that the co-owners may take their ownership portions from the proceeds. The former scenario is most often likely to occur with land that is undeveloped—whereas the latter is often required in situations where commercial or residential property is occupied by a house or structure of some kind.

Now, simple as this sounds, it doesn’t always play out in perfect apportionments the way one might expect from, say, slicing a pie in half. The Court will take into account various contextual elements, such as (when there are two owners, for example’s sake) whether one party has made most or all of the mortgage payments during the course of the ownership, or whether one party has done more to “improve” the property (such as building structures or landscaping) than another. These determinations will be based upon evidence of expenditures.

If you find yourself in a disagreement between co-owners about divestment of a property in Tucson or anywhere else in the state of Arizona, an experienced attorney with strong scruples like the real estate attorneys at Provident Law can be a huge help. Our attorneys represent buyers, sellers, landlords, tenants, lenders, borrowers, trustees, guarantors, shareholders, partners, and others. We structure, negotiate and document a variety of real estate and financing transactions, such as leases, purchase and sale agreements, loans and development agreements for a variety of commercial and residential projects. Contact us for more details.

Christopher J. Charles is the founder and Managing Partner of Provident Law ®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS ® (the “AAR”). Mr. Charles holds the AV ® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions.

Christopher is a licensed Real Estate Instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.