Unmarried Couples and Real Estate Partitions in Massachusetts Family Courts

What is a Partition?

Partitions in Massachusetts Family Courts can help unmarried couples resolve issues around jointly owned real estate. Here is how.

A partition is a legal process overseen by the court, for dividing up interests in property that is owned by two or more people (co-owners). The Massachusetts law that dictates partitions is Chapter 241 of the Massachusetts General Laws. This allows property owners to end their co-ownership of property by bringing a case in either the Land Court or the Probate and Family Court when a real estate dispute occurs. A petition for partition is only filed when the co-owners are unable to agree how to end their ownership. If the co-owners can agree on how to divide the property among themselves or can agree to have one co-owner buy the other’s interest out or agree to sell the property and divide the equity, then there is no need for a partition action to be filed. The person who is seeking a partition is called the plaintiff or the petitioner. The petitioner must file a complaint for a partition with the court. The complaint is done with court-provided forms. The complaint must include a request for either the physical division of the property or the sale of the property. The complaint must also list all the co-owners. The co-owners will be the defendants or the respondents. You must list any interests that they may hold in the property. The complaint must also list any company or individual who holds a mortgage or lien against the property.

For a full list of requirements that must be in the complaint per partition law, can be found here.

You will need to serve on each defendant named in the case the summons. The court may also require other forms of service, such as a publication in the newspaper. The court will require you to record notice of the partition case in the correct registry of deeds or registered land district. You must then file a certificate with the court showing that you recorded the notice at the registry. After you have filed the partition with the court and given proper notice to all co-owners and those who may hold any interest in the property, the court will schedule and hold a case management conference to discuss that case with the parties and to learn about the specific property. Unless you and the other co-owners choose to participate in mediation or other types of alternative dispute resolution options, the court typically issues an “interim warrant” appointing a Partition Commissioner to assist the court in overseeing the partition process. A Partition Commissioner is a neutral, experienced attorney who helps the court manage the partition process. They often investigate the status and condition of the property to help decide if the property can be physically divided, if it is safe or if it is secure and work toward a fair resolution/fair division. The Commissioner will also give the court their legal opinion about whether the property should be sold. A Commissioner is selected from a list of qualified Massachusetts attorneys by the court. The parties may be responsible for the price of the appointed Commissioner. The court determines what a reasonable fee to be paid to the Commissioner is. This fee is generally what a typical attorney’s fee would be for the same or similar work and a customary rate for similar legal services.

What Types of Property can be Partitioned?

Generally, you can partition property that is held by co-owners as “tenants in common” or as “joint tenants.” You cannot file a partition case if you own the property at issue as “tenants by the entirety.” Tenants by the entirety is a form of ownership that is common for married couples. The division of martial property will be solely dealt with through the Probate and Family Court ad part of a divorce. You cannot partition property that is held in a trust, solely by a corporation, LLC or a partnership.

Who Can File a Partition?

Any individual who holds property as a tenant in common or a joint tenant is able to bring a petition to the Land Court or the Probate and Family Court.

Land Court or Probate and Family Court?

You can bring a complaint for partition in the Land Court or the Probate and Family Court. The majority of partition cases are brought through the Land Court. When a partition case is filed and heard in the Probate and Family Court, it is because there are other issues and other cases in the Probate and Family Court involving the same parties. An example of when a partition case would be filed with the Probate and Family Court, is when a couple has never married but have children as a result of that relationship and jointly own real property together. The legal proceedings would exist in the Probate and Family Court because an existing case between the parties would exist for the children.

What Happens to the Property in a Partition Case?

There are three ways a partition may occur:

1. Partition by division (in-kind) a. In a physical division of the property, it will be divided into smaller pieces of property and be separately owned by each party. For example, division of property can be applied to undeveloped land or a piece of land. b. These smaller pieces are called lots or parcels. Each lot corresponds to each co- owner’s share in the property (ownership shares). c. This type of partition is required to take place if the real estate can be divided physically without economic loss. The court will determine if the property can be physically divided before it allows a partition by sale or a partition by set-off. d. There are very few cases where the property can be divided fairly among the co- owners.
2. Partition by sale a. The property will stay in its current configuration but will be sold to a new owner. b. This sale may take place through a private sale or by public auction. c. A private sale is generally like the normal process that owners go through when they are selling property. A real estate broker is engaged to market the property at a certain sale price such as fair market price. Potential buyers make offers on the property. These offers can either be accepted, rejected or countered, if they are allowed by the court. If an offer is accepted, the normal sale procedures for property take place under the supervision of the court. Typically, this happens through an appointed Commissioner. The parties may be responsible for the price of the appointed Commissioner. d. At public auction, the property is offered for sale through a public bidding process. The court will typically set the terms and procedures for the auction. The highest bidder will “win” the sale and will be allowed to purchase the property. e. The price the property is sold for relies on factors such as the economic environment, the location of the property, the condition of the property and the demand for housing, etc. The court is able to set a minimum sale price on the property which would not allow the parties to accept a lower offer without permission from the court. f. How is the equity divided? i. The proceeds of a partition by sale first are used to pay any outstanding liens on the property, such as mortgage, tax liens or other property expenses. Any and all expenses of closing and of the partition are paid off from the sale proceeds as well. All remaining money is split among the co-owners of the property. ii. Typically, the proceeds are split among the co-owners according to their shares in the property. However, the court may determine that one of the co-owners deserves an increased portion or larger share. This can be based off of multiple factors, such as if that co-owner made improvements to the home, always paid the real-estate taxes, paid most of the mortgage for the property or other relevant factors. This determination will be left to the court. iii. Often times, the Commissioner that has been appointed to your case will recommend whether any co-owner should get more or less of the equity from the sale than their percentage share of ownership. The court may also appoint someone new to do this, called a Master or Special Master.
3. Partition by set-off a) One or more of the current co-owners will buy the other co-owners out and they will become the sole owner(s) of the property. b) The co-owners are permitted to have an appraisal done to determine what the property is worth. c. Co-owners are permitted to agree to a set-off before the property is sold by private sale or by auction. d. If you want to buy out the other co-owners’ interests, you must have enough money to buy out all the selling co-owners’ interests. This may mean that you must pay off or refinance any existing mortgage on the property to list only you as the owner. If you are not able to afford to buy out the other co-owners with cash or a refinanced mortgage, a set-off may not be an option for you.