Partition Sales - Forcing the Sale of A House

Forcing the Sale of Real Property through a Partition Action

I own property with someone and want to sell – they don’t.  What can I do?

If you are on title with someone (not a spouse) and would like “out” of the deal, filing an action for partition, or to force sale, is the correct legal process.

An action to partition real property is a lawsuit.  As the plaintiff, you are requesting the court force the defendants to sell the property to either a third party, or to have the defendants purchase your portion of the property, or you theirs.  Like any lawsuit, it can take months to resolve and come with unexpected costs and hurdles.

At the conclusion of the suit, the court will either order the sale of the property at an auction or a private sale.  Expenses for conducting the sale will receive first priority for contribution, after the expenses, liens, such as mortgages, are paid.  Only after pay off of the liens do the parties recover proceeds, if any proceeds are available.

In today’s recovering real estate market, a property purchased years ago may have held higher value.  Selling today may not allow you to pay off the mortgage liens, let alone realize proceeds for the owners.  A forced sale may not make practical sense for a homeowner in this situation. Working to come to a resolution with the other party makes better sense for homeowners seeking to partition distressed property.  Entering into an informal agreement that takes the depressed property value into account it critical.  The property owners can agree to buy the other out at a reduced price and on a long term payment plan, hold the property for an indefinite time until market conditions improve, or sell the property to a third party through a short sale.  A benefit to informal resolution is less expense for the parties by way of court costs and attorney fees, particularly if your property has lost value.

No matter what option you end up going with, ensure you are well advised of your rights and the consequences of any option you choose.  Working with your real estate agent, a tax advisor, and a real estate attorney allow you to be fully apprised of the alternatives available to you.

To learn more, contact attorney Elena Rivkin Franz at or (408) 940-5360.