What happens if you and your siblings inherit property from your parents, and you don’t agree on what to do with it? (what, siblings disagree?) Can you force the sale of the property?
In Tennessee, in many instances, the answer is yes, through an action called a partition.
This need often arises when a parent dies without a will, or their will divides their real estate, which might include a family home or the family farm, equally between children. In that case, each sibling would own the property as “tenants-in-common,” (also referred to as co-tenants) which means you each own an equal share of the entire property. All co-tenants have the right to use all of the property and share in any profits from it. When disagreements arise about how to use the property – say one sibling lives on the property and wants to stay, another wants to rent it out, and you want to sell it altogether – Tennessee law is clear that co-tenants have the right to partition real estate.
A partition action is a lawsuit in which a co-tenant asks the court to divide property among its owners. Property can be divided in one of two ways: either 1) the court will divide the property into separate portions, called a partition in kind, or 2) the court will order the entire property sold – a partition by sale – and the proceeds are divided equally between the co-tenants.
As you might imagine, there are several circumstances in which a partition in kind would not be feasible or fair. How do you divide residential property with one house on it into three pieces? What if one part of a family farm is worth considerably more than another?
Tennessee law sets out a clear test to determine whether partition by sale is warranted. While the law places the burden of proof on the party seeking partition by sale, meeting that burden is not a particularly high hurdle.
Here is T.C.A. 29-27-201:
Any person entitled to a partition of premises, under the provisions of part 1 of this chapter, is equally entitled to have such premises sold for division, in the following cases:
(1) If the premises are so situated that partition thereof cannot be made; or
(2) Where the premises are of such description that it would be manifestly for the advantage of the parties that the same should be sold instead of partitioned.
In other words, a co-tenant is entitled to partition by sale if either the property cannot be divided, or if the co-tenant would be disadvantaged by dividing the property. Courts have found a co-tenant would be disadvantaged if “the value of all shares would be less than the value of the tract as a whole”, or if the value of each portion is unequal.
In a 2004 case, Potts v. Rogers, for example, the Tennessee Court of Appeals affirmed a court order to sell 115 acres near Hixson, Tennessee that was left to six siblings as co-tenants. The court emphasized that because one portion of the property was considerably more valuable than the rest, a fair division of the land was not feasible.
Please contact us today online or by calling 800.705.2121 to discuss your legal options.