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Tenancy in common –
Disadvantage, also applicable to joint tenancy, is that one tenant in common can force a sale of the property even when the other co-owners do not want to sell.
Such a legal action is called a partition lawsuit in which the court orders the property sold and the proceeds divided among the tenants in common (or joint tenants).
As a tenant holding a common interest in real property, the law affords you certain rights, obligations and remedies. Unless the parties otherwise agree to waive the right, each tenant has the right to partition the party.
Partition is similar to seeking a dissolution of a business partnership or marriage.
Upon the filing of a petition by a tenant, the Court determines whether the right to partition exists, and if so whether the partition decree should order the property divided among the co-owners, usually impractical or unlawful, or, in the alternative, should the decree order that the property be sold and the proceeds divided among the co-owners.
As part of the partition, you may also want to address whether there are any financial obligations of one tenant owing to the other.
In most instances, with the assistance of counsel, the tenants usually come to an understanding to jointly market and sell the property. Because of the cost and delay involved in filing a partition lawsuit, cooperation between the tenants is the first choice.
Generally, a voluntary sale yields a higher selling price than a court ordered sale. An attorney will also want to review the amount invested by you to determine if you are entitled to recover any additional amounts contributed in excess of your percentage ownership in the property.
