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randle · Aug 15, 2007, 06:29 AM

[B] I had asked this question on partition,but didn't give all the information needed. I own property with my brother as tenacy in common . My Brother , who is an Attorney , Filed for partition of the property to be sold at public auction. He did not contact me at all to find out if I wanted to purchase his share of the property. He filed without my knowledge or consent. Had I known he wanted to sell his interest , I would have bought his Interest at a Fair Market Value if he offered it to me. What I need to know can I ask the Court to let me buy his interest at Fair Market value and keep it from being sold at Public Auction. What would be my best course of action. I have 30 days to respond.

LisaB4657 · Aug 15, 2007, 06:32 AM

Yes, you should be able to stop the auction. Get yourself a real estate attorney immediately. They should be able to file for a temporary restraining order to stop the auction and allow you to buy the property. But don't wait!

ScottGem · Aug 15, 2007, 06:35 AM

If he filed for partition that means he wants the property resurveyed into two separate lots. Once this is done the deed is voided and two new deeds issued for each surveyed lot. At that point, you no longer have an interest in his portion of the property and vice versa so he can do with it what he wants. You will then have the option to bid on it.

If the partition requires your agreement (I assume that's what you are being asked to respond to), you probably can deny the partition. At which point he has to sue to get a judge to allow it. So you deny the partititon and make a counter offer to purchase his interest.

LisaB4657 · Aug 15, 2007, 06:39 AM

Scott, a person cannot file a partition without a court order. I think you are talking about a subdivision.

ScottGem · Aug 15, 2007, 06:44 AM

I'm assuming that's what was filed, a request for the court to order the property subdivided. Or is a partition something different?

LisaB4657 · Aug 15, 2007, 06:49 AM

A partition is different. A subdivision is where property is divided upon agreement of all owners, usually for purposes of development, such as creating additional building lots. A subdivision map or site plan gets filed with the town and county. All owners of the original piece are still owners of the individual pieces, in the same proportions, unless they create transfers among themselves and file deeds for those properties.

When you have multiple owners of a property and they cannot agree on the disposition of the property, one or all of them can file a motion for partition. This is where the court determines that the property be sold as one whole piece, for fair market value, and the proceeds divided among the owners according to their rights. A partition doesn't divide the property itself, it only requires that it be sold and the proceeds be divided.

ScottGem · Aug 15, 2007, 07:00 AM

Ahhh mea culpa. I thought a partition allowed one owner to sell his portion independently.

Isn't it odd though that randle's brother would file for partition without discussing selling the property?

LisaB4657 · Aug 15, 2007, 07:05 AM

It's possible that the brothers are not on speaking terms and this is his brother's way of pushing the issue to a resolution. It's unfortunate that they have to use attorneys to speak to each other instead of just sitting down and getting it done. :(

randle · Aug 16, 2007, 08:50 AM

lisa , I would be glad to discuss talking with my brother about buying his interest , but it seems that he will not return calls or correspond in any way, and has hire an attorney to file his motion to partition and his complaint for partition. I have done research and there is a court case where the supreme court ruled that the trial court can use its discretion to allow a tenant in common to allow purchase the other interest in property at Fair Market Value and avoid the property going to auction. Each interest is equal in this case. Do you know where or what source would have that supreme court decision? We are filing answers to this matter , just need to find that case.

LisaB4657 · Aug 16, 2007, 08:57 AM

I'm sorry but I don't have access to the service that would allow me to research the case law. But don't you have an attorney yet? If not, get one immediately! This really isn't something that you should be trying to do on your own.