Detailed Answer
When co-owners cannot agree on dividing or selling real property in Massachusetts, one owner can ask a court to force a division or sale through a partition action. The right to bring a partition lawsuit is codified in Massachusetts law. See M.G.L. c.241, §1.
What a partition action does
A partition lawsuit asks the court to either:
- Order a partition in kind — divide the property into physically separate parcels so each owner has a piece consistent with their share, or
- Order a sale — sell the property and divide the net proceeds among owners according to their ownership shares.
Courts prefer partition in kind when it is practical and will not materially prejudice the owners. If an in-kind division is impractical or would reduce value, the court will order a sale.
Who can file
An owner of real estate who holds a present interest (for example, a tenant in common or a joint tenant) can file for partition. You should name every co-owner and anyone with an interest that could affect the property (for example, mortgagees or lienholders) so the court can resolve all competing claims.
Pre-filing steps (recommended)
- Identify ownership type (tenant in common, joint tenancy, etc.).
- Review deeds, mortgages, and other encumbrances.
- Request a meeting and make a written offer to buy out or to sell — courts expect owners to try to resolve disputes before suing.
- Consider mediation or a neutral valuation (appraisal) to narrow issues before filing.
Where you file
Partition actions are filed in a Massachusetts court. Many property disputes are handled in the Land Court (particularly when title is registered), but parties commonly bring partition actions in Superior Court as well. Your choice depends on the property’s status and local practice. A local real estate attorney can advise which court is appropriate.
Typical court process and timeline
- File complaint/petition. The plaintiff files a complaint that describes the property, ownership shares, and the requested relief (partition in kind or sale). The complaint must name all interested parties and claimants.
- Service and responses. The complaint and summons are served on co-owners and lienholders. Defendants usually must file an answer or other responsive pleading within the time allowed by court rules.
- Pretrial and discovery. Parties exchange documents (deeds, mortgage statements, surveys, appraisals) and may take depositions. The court may require appraisal or survey evidence to evaluate whether partition in kind is feasible.
- Commissioners or referees. The court often appoints commissioners, referees, or a special master to inspect the property, prepare a report, propose a division, or handle the sale process. The appointed person files a report and a proposed plan of partition or sale.
- Objections and hearing. Parties may object to the commissioner’s report. The court holds a hearing, rules on objections, and issues an order for partition in kind or a sale.
- Sale and distribution. If the court orders a sale, it will supervise or approve the sale method (public auction or private sale), confirm the sale, pay liens and costs from the proceeds, and distribute the balance according to ownership shares.
Timeframes vary: straightforward matters can take several months; complex disputes with litigation over title, liens, or multiple owners can take a year or more.
Costs and who pays
Costs include filing fees, attorney fees, appraisal and survey costs, commissioner fees, and court costs for the sale. The court assigns costs and fees—often the sale proceeds cover those expenses before owners receive their shares. In some circumstances the court may require an owner who acted unreasonably to pay a larger share of costs.
Mortgages, liens, and third-party interests
Mortgagees and lienholders should be named as defendants. Their interests survive partition and are typically paid from sale proceeds in order of priority. If a lien affects the property, the purchaser at a court-ordered sale takes title subject to that lien unless the sale proceeds satisfy it.
Options short of a court-ordered partition
- Negotiate a buyout where one owner purchases the others’ shares.
- Agree to sell the property privately and split proceeds.
- Use mediation to reach a tailored agreement that avoids litigation costs and delay.
Practical example (hypothetical)
Three siblings own a vacation cottage as tenants in common. Two want to sell, one wants to keep it. The sibling who wants out serves a written demand and offers a buyout. When negotiations fail, that sibling files a partition action under M.G.L. c.241, §1, names the other co-owners and the mortgage lender, and asks the court for a sale. The court appoints commissioners, supervises the sale, pays the mortgage from the proceeds, and distributes the remainder according to each sibling’s ownership share.
Key statutes
The statutory basis for partition actions in Massachusetts is found at M.G.L. c.241, §1. For exact procedures and additional statutory detail, review the chapter on partition on the Massachusetts Legislature’s website.
Helpful Hints
- Gather title documents: deed, mortgage statements, tax bills, and any recorded agreements.
- Ask for a current survey and a market appraisal early—courts rely on these to decide if in-kind partition is possible.
- Name all possible interested parties (co-owners, mortgagees, judgment lienholders) in the complaint to avoid later challenges.
- Attempt negotiation or mediation before filing; courts and judges often view reasonable settlement efforts favorably.
- Consider whether a buyout or private sale would cost less and close faster than litigation.
- Expect to pay prorated property taxes, liens, and closing costs out of sale proceeds.
- Plan for time and cost—partition cases can become expensive if parties litigate title, liens, or valuations.
- Consult a real estate attorney early to confirm the proper court (Land Court vs. Superior Court) and to prepare pleadings that protect your rights.