Summary: A partition is the legal process for ending shared ownership of real estate when the owners can’t agree. In Arizona, any co-owner can ask the superior court to divide the property or order it sold under A.R.S. §§ 12-1211 through 12-1225. Here is what partition means, who it applies to, and how it works from start to finish.
When people own real estate together, every owner holds an undivided interest in the whole property. If you and your brother each own half of your mother’s house, neither of you owns the kitchen or the backyard. You each own half of everything. That works while you agree. When you don’t, partition is how the law untangles it.
Partition, Defined
A partition (or partition action) is a lawsuit in which a court ends co-ownership of real property. The court decides who owns what share, settles any disputes over title, and then either:
- Divides the property itself so each owner gets a separate piece (partition in kind), or
- Orders the property sold and divides the money (partition by sale).
Either way, when the case is over, the co-owners no longer own the property together.
Who Can Use Partition?
Under A.R.S. § 12-1211(A), anyone who owns or claims an interest in real property held with others can ask the court to partition it. Common situations include:
- Siblings or other heirs who inherited a house or land together
- Unmarried partners who bought a home together and separated
- Friends or relatives who bought property together as an investment
- Business partners who hold title to a rental or commercial property in their own names
It doesn’t matter how small your share is. A co-owner with 10% has the same right to file as one with 90%, and Arizona courts generally treat partition as a matter of right. You don’t have to prove the other owner did anything wrong. The main exception is when the owners signed an agreement that waived or limited partition.
How Co-Ownership Is Held
How title is held affects what happens, so it’s worth knowing which kind you have. Your deed will say.
- Tenants in common: each owner holds a share, which can be unequal. When an owner dies, their share passes to their heirs or beneficiaries, not to the other owners. This is the most common form for inherited property.
- Joint tenants with right of survivorship: owners hold equal shares, and when one dies, the survivors take that share automatically. Filing a partition action effectively ends the survivorship feature. See Joint Tenancy in Arizona.
- Community property (married couples): property spouses hold as community property is normally divided in a divorce under Title 25, not in a partition action.
Partition in Kind vs. Partition by Sale
Partition in Kind
If the property can be fairly divided, the court appoints at least three impartial commissioners to split it into parcels that match each owner’s share in value (A.R.S. §§ 12-1215 and 12-1216). This can work for raw land or a large parcel that can be split without losing value.
Partition by Sale
Most homes, condos and small lots can’t be divided without destroying their value. Under A.R.S. § 12-1218(B), the court orders a sale when dividing the property would reduce its value or when a sale would be more beneficial to the owners. The court appoints a commissioner to handle the sale on terms it sets. The proceeds come back to the court and are distributed according to each owner’s interest, after costs and any credits the court allows.
How a Partition Case Works
- Title review. Confirm exactly how title is held, who the owners are, and what liens are recorded against the property.
- Complaint. A co-owner files a complaint in the superior court of the county where the property is located. It names every owner and claimant, states each person’s share, and describes the property and its estimated value (A.R.S. § 12-1211(B)). Lienholders are often named too.
- Service and response. Every co-owner is formally served and has the chance to respond. Unknown owners can be served by publication (A.R.S. § 12-1212).
- Lis pendens. A notice of the pending case is often recorded so buyers and lenders know about it. See Lis Pendens Requirements and Checklist in Arizona.
- Shares and accounting. The court determines each owner’s interest and resolves title disputes (A.R.S. § 12-1213). It can also account for unequal contributions, such as the down payment, mortgage payments, taxes, insurance and improvements, and for one owner having lived there alone.
- Division or sale. The court orders the property divided or sold.
- Distribution. Proceeds are paid out according to the court’s judgment, and title passes to the new owner or owners.
For more detail on the filing requirements, see What Are the Requirements for a Partition Action in Arizona?
Who Pays for It?
Under A.R.S. § 12-1225, the fees of the commissioners and any surveyor are treated as costs of the case and divided among the owners in proportion to the value each receives. Attorney’s fees are a separate question that depends on the facts and any agreements between the owners.
Most Cases Settle
A partition lawsuit is often the push that gets a stalled situation moving. Once a reluctant co-owner sees that the court will order a sale anyway, many agree to a buyout, where one owner buys the other out at a fair price, or to a voluntary sale on the open market. Both are usually faster and cheaper than seeing the case through to a court-ordered sale.
Inherited Property
Heirs who inherit property together are co-owners and can use partition. Special rules can apply to inherited family property, including buyout rights for the other heirs. See Inherited Property in Arizona: How the Uniform Partition of Heirs Property Act Protects Family Land and Can I Force the Sale of Inherited Property in Arizona?
Related: Partition myths and facts: can’t I just fill out a form or record a deed? · How to remove a co-owner from a house title in Arizona · What information should a co-owner gather for a partition action
For more on how we handle these cases, see the Arizona partition actions guide.
Talk to an Arizona Partition Attorney
If you co-own property with someone who won’t cooperate, you have options. Scott Resnick Law helps Arizona property owners with partition actions and co-ownership disputes. Contact us today to schedule a consultation.
This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. Partition law depends on the facts, and statutes can change, so consult an Arizona attorney about your situation.