Partition, Accounting, Contribution, Waste, and Rights of Co-Owners

Chapters 16 through 19 examined the forms in which two or more persons may hold at the same time: the general law of concurrent ownership, joint tenancy with its survivorship, tenancy by the entirety with its marital unity, and the civil-law community regime. Each chapter described a relationship. This chapter describes what the law does when the relationship fails. Concurrent ownership is inherently unstable: it distributes possession without dividing it, it requires cooperation it cannot compel, and it accumulates unequal expenditures, unequal occupancy, and unequal benefit that no deed records. The law's response is a remedial apparatus of considerable age and continuing development — partition to terminate the relation, equitable accounting to settle it, contribution to allocate its costs, waste to restrain its abuses, and, since 2010, the Uniform Partition of Heirs Property Act to protect the families that partition by sale has historically dispossessed.

1. Partition is a matter of right, not of judicial grace. Any cotenant holding a present possessory interest may demand partition, and the court may not deny it because the timing is inconvenient, the motive is unsentimental, or the other cotenants object. The discretion of the court runs to the manner of partition, not to whether partition shall occur.
2. Partition did not exist at common law for joint tenants and tenants in common. Coparceners could compel it by the writ de partitione facienda; joint tenants and tenants in common could not, until 31 Hen. 8, c. 1 (1539) and 32 Hen. 8, c. 32 (1540). Every American partition statute descends from those two acts.
3. Partition in kind is the presumptive remedy. The statutes and the Restatement direct a physical division unless division cannot be made without great prejudice to the owners. The party seeking a sale bears the burden of establishing prejudice. See Delfino v. Vealencis, 436 A.2d 27 (Conn. 1980).
4. Great prejudice is measured against the owners, not against the market. That a sale would yield a larger aggregate price is not, standing alone, great prejudice; the inquiry considers the character of the land, the use to which it is put, and the non-economic interests of an owner in possession.
5. Owelty preserves partition in kind where the parcels cannot be made exactly equal. A money payment charged upon the more valuable allotment equalizes the division and is secured by an equitable lien; owelty is therefore the principal technical device by which a court avoids a forced sale.
6. Partition is an equitable proceeding and carries a full accounting. The court that partitions may adjust the equities in the same decree: taxes, mortgage interest and principal, insurance, necessary repairs, improvements, rents received from third parties, and the reasonable rental value of exclusive occupancy.
7. Contribution lies for carrying charges; it does not ordinarily lie for improvements. A cotenant who pays taxes, insurance, mortgage installments, or necessary repairs may compel proportionate contribution. A cotenant who improves the land may not compel contribution, but is protected in partition by an allotment of the improved portion or by credit for the enhanced value, not the cost.
8. Sole occupancy is lawful; ouster is not. Each cotenant is entitled to possession of the whole, and an occupying cotenant owes no rent merely for occupying. Liability for rental value arises upon ouster, upon agreement, upon a claim for contribution offset, or where the occupant has excluded, or denied the right of, the others.
9. Waste restrains a cotenant's destruction of the common asset. The statute of Westminster II and the Statute of Gloucester supplied the medieval action; the modern law permits an accounting for the value of timber cut, minerals removed, and oil and gas produced beyond the cotenant's fractional share, and an injunction where the loss would be irreparable.
10. Adverse possession between cotenants requires an actual ouster brought home to the others. Possession by one cotenant is presumed to be possession on behalf of all; the statute of limitations does not begin to run until the possessor's claim of exclusive right is unequivocal and known, or reasonably discoverable, by the cotenants excluded.
11. A cotenant may encumber only his own undivided interest. A mortgage or judgment lien attaches to that fractional interest and, on partition, follows the allotment made to the encumbering cotenant rather than burdening the whole.
12. The Uniform Partition of Heirs Property Act reorders the remedy for inherited family land. Where the property is heirs property, the Act requires a court-ordered appraisal, offers the non-petitioning cotenants a statutory right to buy out the petitioner's interest at the appraised value, and, failing buyout, prefers partition in kind and requires an open-market sale by a broker rather than a courthouse-step auction. Unif. Partition of Heirs Prop. Act §§ 6–10 (Unif. Law Comm'n 2010).
13. The right to partition may be waived or restricted, within limits. An express agreement not to partition is enforceable if reasonable in purpose and limited in duration; a perpetual and unqualified restraint fails as an unreasonable restraint on alienation.

On completing this chapter the reader should be able to:

1. State the origins of partition in coparcenary and explain what the statutes of 31 and 32 Henry VIII added.
2. Identify who may demand partition, against whom, and what interests are and are not subject to it.
3. Apply the statutory preference for partition in kind and the great-prejudice standard governing partition by sale.
4. Explain owelty and identify the circumstances in which it preserves a division in kind.
5. Conduct an equitable accounting: classify each expenditure and receipt and allocate it among the cotenants.
6. Distinguish contribution for carrying charges from credit for improvements, and state the measure of each.
7. Explain when an occupying cotenant becomes liable for rental value and what constitutes ouster.
8. Analyze cotenant waste, including the removal of timber, minerals, and oil and gas.
9. State the standard for adverse possession by one cotenant against another.
10. Trace the effect of mortgages, judgment liens, and tax liens through a partition decree.
11. Apply the Uniform Partition of Heirs Property Act and explain the abuses it was enacted to correct.
12. Advise on the drafting of cotenancy agreements restricting or deferring partition.

The rules stated in this chapter rest upon the following primary sources. Jurisdiction-specific statutes are cited as representative; the governing act of the forum controls.

• Restatement positions. Restatement (First) of Property §§ 171–199 (1936) (concurrent interests); Restatement (Third) of Property: Servitudes § 4.1 (1st Am. Law Inst. 2000) (interpretation of agreements affecting land, applied to cotenancy covenants); Restatement (Third) of Restitution and Unjust Enrichment §§ 23–27 (2011) (contribution and improvements by a cotenant); Restatement (Fourth) of Property (Tent. Draft) (division of concurrently owned property).
• Historical English statutes. Statute of Marlborough, 52 Hen. 3, c. 23 (1267); Statute of Gloucester, 6 Edw. 1, c. 5 (1278) (waste); Statute of Westminster II, 13 Edw. 1, c. 22 (1285); 31 Hen. 8, c. 1 (1539) (partition — joint tenants and tenants in common); 32 Hen. 8, c. 32 (1540) (extending partition to estates for life and years); Partition Act, 1868, 31 & 32 Vict. c. 40 (sale in lieu of division).
• Uniform legislation. Uniform Partition of Heirs Property Act §§ 1–17 (Unif. Law Comm'n 2010); Uniform Probate Code §§ 3-706, 3-911 (partition for purposes of distribution); Uniform Trust Code § 816 (trustee's power to partition).
• Representative state partition statutes. Cal. Civ. Proc. Code §§ 872.010–874.323 (including §§ 873.210–873.290 (owelty and referees) and §§ 874.311–874.323 (heirs property)); N.Y. Real Prop. Acts. Law §§ 901–1029; Tex. Prop. Code §§ 23.001–23.006 and Tex. R. Civ. P. 756–771; Fla. Stat. §§ 64.011–64.093; Ga. Code §§ 44-6-160 to 44-6-181; N.C. Gen. Stat. §§ 46A-1 to 46A-92; S.C. Code §§ 15-61-10 to 15-61-380; 735 Ill. Comp. Stat. 5/17-101 to 5/17-127.
• Cotenancy, accounting, and waste statutes. Statute of Anne, 4 & 5 Anne, c. 16, § 27 (1705) (account against a cotenant receiving more than his share), received in most American jurisdictions; e.g., N.Y. Real Prop. Acts. Law § 1201; Cal. Civ. Proc. Code § 872.140 (compensatory adjustments); statutory double and treble damages for timber trespass, e.g., Cal. Civ. Proc. Code § 733; Wash. Rev. Code § 64.12.030.
• Recording and title. State recording acts governing lis pendens in partition and the recording of the final decree; e.g., Cal. Civ. Proc. Code § 872.250; N.Y. Real Prop. Acts. Law § 915; Tex. Prop. Code § 13.001.
• Federal law. 26 U.S.C. § 7403 (judicial sale of property in which the United States claims a lien, and the rights of non-liable co-owners); United States v. Rodgers, 461 U.S. 677 (1983); 11 U.S.C. § 363(h)–(j) (trustee's sale of a co-owner's interest and distribution of proceeds).

Secondary authority is used here only to organize and explain the primary sources.

• 2 William Blackstone, Commentaries on the Laws of England *179–*194 (1766) — coparcenary, joint tenancy, and the Henrician partition statutes.
• Edward Coke, The First Part of the Institutes of the Laws of England (Coke on Littleton) §§ 241–323 (1628) — parceners and partition.
• 2 James Kent, Commentaries on American Law *350–*373 (1827) — American reception of partition and accounting.
• 2 Frederick Pollock & F. W. Maitland, The History of English Law Before the Time of Edward I 274–318 (2d ed. 1898) — coparcenary and the writ de partitione facienda.
• A. W. B. Simpson, A History of the Land Law 56–80 (2d ed. 1986).
• J. H. Baker, An Introduction to English Legal History (5th ed. 2019), ch. 14 (real actions and their statutory supplements).
• 2 American Law of Property §§ 6.17–6.26 (A. James Casner ed. 1952).
• 7 Powell on Real Property ch. 50 (Michael Allan Wolf ed.) (concurrent ownership and partition).
• Thomas W. Mitchell, From Reconstruction to Deconstruction: Undermining Black Landownership, Political Independence, and Community Through Partition Sales of Tenancies in Common, 95 Nw. U. L. Rev. 505 (2001).
• Thomas W. Mitchell, Reforming Property Law to Address Devastating Land Loss, 66 Ala. L. Rev. 1 (2014) — the drafting rationale of the UPHPA.
• Faith Rivers James, Restoring the Promise of Heirs Property, 4 Wake Forest J.L. & Pol'y 43 (2014).

Partition is the judicial or voluntary division of property held in concurrent ownership, by which the undivided fractional interests of the cotenants are converted into separate ownership — either of physically distinct parcels, in the case of partition in kind, or of proportionate shares of the proceeds, in the case of partition by sale. It terminates the cotenancy. It does not adjudicate title as between the cotenants and the world; a partition decree divides what the cotenants collectively own and no more, and a stranger's paramount title is unaffected by it.

The remedy performs two functions that should be kept distinct. The first is structural: it dissolves a relationship that the law will not compel anyone to continue. The second is corrective: because partition proceeds in equity, the decree that dissolves the relationship also settles it, adjusting for the taxes one cotenant paid, the rents another collected, the improvements a third built, and the years a fourth occupied to the exclusion of the rest. In most litigated cases the second function is the contested one. The right to partition is rarely disputed; the accounting almost always is.

Partition is available to cotenants holding a present possessory interest — tenants in common and joint tenants, and in most states coparceners and cotenants for life or for years. It is not available to the holder of a mere future interest, because such a holder has no present right to possession to divide, and, subject to statute, it is not available between spouses holding by the entirety, whose estate rests upon the unity of marriage examined in Chapter 18. The community-property regime of Chapter 19 has its own division machinery, in the family code rather than the partition statute.

Medieval English law knew compulsory partition only for coparceners — the daughters or sisters who took together as heirs in default of a male heir. Because coparcenary was imposed by descent rather than chosen, the law would not require the parceners to remain together, and the writ de partitione facienda lay of right. Pollock and Maitland describe the parceners as holding one inheritance until the sheriff, on the writ, divided it into purparties; where the land could not be equally divided, the elder took first choice and equality was preserved by charging money or by allotting the parcels in rotation. The medieval device of equalization by payment is the ancestor of modern owelty, and the word itself — from the Old French oueltee, equality — is medieval.

Joint tenants and tenants in common stood differently. Their cotenancy arose from grant or purchase, and the common law reasoned that persons who had chosen to hold together could be left to their bargain. Coke states the rule without apology: partition lay for parceners of common right, and for joint tenants and tenants in common only by agreement. The consequence was that an uncooperative cotenant could hold the others hostage indefinitely, a defect that grew intolerable as land became an object of commerce rather than of inheritance.

Parliament corrected it in two steps. The statute 31 Hen. 8, c. 1 (1539) gave joint tenants and tenants in common of estates of inheritance the same writ of partition the parceners had. The statute 32 Hen. 8, c. 32 (1540) extended the remedy to those holding for life or for years, and settled that the partition of a lesser estate would not prejudice the reversioner. Blackstone treats the two acts as a single reform and notes their effect: what had been a matter of grace became a matter of right. Every American partition statute traces to these acts, and American courts still cite them for the proposition that the right to partition is absolute in kind and statutory in origin.

The second great development was the introduction of sale. Partition in kind was the only remedy the Henrician statutes provided, and in England it remained so until the Partition Act, 1868, 31 & 32 Vict. c. 40, permitted the Court of Chancery to order a sale where division was impracticable or would be prejudicial. American legislatures moved earlier and more freely, authorizing sale during the nineteenth century as urban and mineral lands made physical division increasingly unworkable. The historical sequence matters doctrinally: sale is the statutory exception grafted onto a remedy that was, and in form still is, a division in kind. Courts that have forgotten the sequence have inverted the presumption, and it is precisely that inversion the heirs-property reforms of the last fifteen years were enacted to reverse.

The modern right is stated in nearly identical terms across the jurisdictions: a cotenant is entitled to partition as of right, and the court has no discretion to refuse it. California puts the rule affirmatively — partition as to concurrent interests in real property shall be as of right unless barred by a valid waiver. Cal. Civ. Proc. Code § 872.710(b). The absence of discretion is the point of the rule. A court may not deny partition because the plaintiff's motive is mercenary, because the market is unfavorable, because the defendant is elderly or sentimentally attached to the land, or because the plaintiff acquired the interest recently and for the purpose of forcing a division.

Two qualifications should be understood at the outset. First, the absoluteness of the right attaches to partition, not to any particular form of it. Every consideration a court may not weigh in deciding whether to partition — hardship, attachment, use, the character of the neighborhood — it may and must weigh in deciding whether to divide the land or to sell it. Second, the right may be surrendered. A cotenant may waive partition by agreement, and the waiver, if reasonable, binds successors with notice. These two qualifications carry most of the practical law, and Parts II and V develop them.

Standing belongs to any person holding an undivided present interest, including a purchaser of one cotenant's fractional share, a judgment creditor who has levied upon and acquired that share, and a trustee in bankruptcy succeeding to a debtor cotenant's interest. It does not belong to a mortgagee whose interest is a lien rather than a possessory estate in a lien-theory state, nor to the holder of an executory interest or remainder. A life tenant may partition the possessory estate among concurrent life tenants but may not compel the division of the remainder, which the statutes protect.

Partition in kind is the physical division of the land into parcels allotted in severalty to the former cotenants in proportion to their undivided interests. It is the presumptive and historically the only remedy, and the statutes of most states still express the preference expressly: the court shall order partition in kind unless it finds that division cannot be made without great prejudice to the owners. See, e.g., Cal. Civ. Proc. Code § 872.810; N.Y. Real Prop. Acts. Law § 901; N.C. Gen. Stat. § 46A-75.

The preference has substantive justifications, not merely historical ones. A division in kind leaves each owner with the thing owned rather than with money, which is the only remedy that respects the in-rem character of property rights; it avoids the transaction costs and the price discount of a forced sale; it protects an owner in possession from involuntary displacement; and it prevents the strategic use of the partition action by a purchaser of a small fractional interest to compel the sale of the whole. Delfino v. Vealencis, 436 A.2d 27 (Conn. 1980), is the canonical modern application: the trial court had ordered a sale of a 20.5-acre parcel held by a developer and by Helen Vealencis, who lived on the land and operated a garbage-hauling business from it. The Connecticut Supreme Court reversed, holding that the statutory preference for division in kind required the trial court to account for the defendant's residence and long-standing business use, and that the developer's prospect of a larger return on a subdivision did not establish great prejudice.

Practically, division in kind requires that the land be susceptible of division into parcels of proportionate value that comply with zoning, subdivision, and access requirements. The court will consider the shape and topography of the tract, the location of improvements, the availability of road frontage and utilities to each proposed parcel, mineral and water rights, and whether any cotenant occupies a particular portion. Where the parcels cannot be made exactly proportionate, the court equalizes by owelty rather than abandoning the division.

Partition by sale converts the land into money and divides the proceeds. It is authorized in every American jurisdiction by statute and is, in practice, the outcome of the great majority of contested partition actions — a fact that stands in tension with the formal preference just described and that supplies the impetus for the reforms treated in Part V.

The governing standard is great prejudice to the owners. Two readings compete. The narrow and historically correct reading asks whether the aggregate value of the parcels after division would be materially less than the value of the whole, together with whether the physical division is feasible at all. The broad reading, which has predominated in practice, asks whether a sale would produce more money — a question to which the answer is almost always yes, because a whole parcel with unified control ordinarily commands more than the sum of its fractions. Courts adopting the broad reading have effectively repealed the statutory preference. The Restatement and the modern authorities insist on the narrow reading and on the significance of the statutory word owners: the prejudice must be to the persons, in their interests as owners, and not merely to the abstract market value of the res.

The burden rests on the party seeking a sale. Where the record is silent on the feasibility of division, the court must order partition in kind. Practitioners should therefore expect the contested issues in a modern partition to be evidentiary: surveys, subdivision feasibility, appraisals of the whole and of the proposed allotments, and testimony on non-economic use. Where the property is heirs property, the UPHPA supplies an express and more demanding framework, discussed in Part V.

Where a sale is ordered, the statutes generally require it to be conducted in the manner most beneficial to the parties, either by public auction or by private sale, subject to court confirmation. Auction sales have been the traditional default and are the mechanism most criticized: they are advertised narrowly, attended by few bidders, and frequently produce prices far below appraised value. The UPHPA's open-market sale provision, requiring listing with a licensed broker at not less than the appraised value, is a direct response.

Owelty is a sum of money charged upon the allotment of a cotenant who receives a share of greater value than his interest warrants, payable to the cotenant whose allotment is correspondingly deficient. Its function is to make an unequal physical division equal in value, and its availability is the reason that mathematical inequality of parcels is not, by itself, great prejudice.

The award is secured. Most statutes and decisions treat owelty as an equitable lien upon the parcel charged, enforceable by foreclosure if unpaid, and superior to interests attaching after the decree; the decree should state the amount, the parcel charged, the payee, the terms of payment, and the lien expressly, and it should be recorded. Cal. Civ. Proc. Code § 873.250 is representative in authorizing compensatory adjustments and providing for their security.

Owelty should be distinguished from the accounting adjustments treated in Part III. Owelty equalizes the value of the allotments as of the date of partition; accounting adjusts for the parties' historical expenditures and receipts. A decree may contain both, and a well-drafted decree keeps them in separate paragraphs, because they rest upon different findings and, in some jurisdictions, upon different limitation periods.

Cotenants may partition by agreement without judicial proceedings, by exchanging mutual deeds that convey to each the parcel allotted. A voluntary partition of real property must satisfy the Statute of Frauds, 29 Car. 2, c. 3 (1677), and should be recorded; a parol partition followed by taking possession in severalty and by acts of ownership has nonetheless been enforced in many jurisdictions on estoppel or part-performance grounds. Voluntary partition is generally not a taxable event under the federal income tax when the parcels received correspond in value to the interests surrendered.

The right to compel partition may also be restricted by agreement. The controlling standard is reasonableness: an agreement not to partition for a definite and limited period, or until a stated event, and serving a legitimate purpose — completing a development, preserving a family residence for a surviving parent's life, holding investment property until a market condition occurs — will be enforced. A perpetual and unqualified restraint will not, because it operates as an unreasonable restraint on alienation. Restatement (First) of Property §§ 171–199 and the servitudes analysis of Restatement (Third) of Property: Servitudes § 4.1 supply the interpretive framework.

Whether such an agreement binds successors depends on notice and, in some jurisdictions, on whether the restriction is characterized as a covenant running with the land. A recorded cotenancy agreement will bind a purchaser of a fractional interest with record notice; an unrecorded agreement will not bind a bona fide purchaser. Restrictions may also arise by implication from the purpose of a joint undertaking — a partnership holding land as a partnership asset, for example, is not subject to partition at the instance of a partner, because the partner's interest is in the partnership and not in the specific property.

Partition is a proceeding in rem, or quasi in rem, brought in the court of the county where the land lies; venue is local and, in most states, jurisdictional in the sense that no other county's court may divide the land. The complaint must describe the property, state the plaintiff's interest and the interests of all other owners so far as known, and identify all liens and encumbrances of record.

All persons holding an interest in the property are necessary parties: cotenants, holders of future interests where the statute permits or requires their joinder, lienholders of record, judgment creditors, mortgagees, and the taxing authority where taxes are delinquent. Unknown claimants may be joined by publication under most statutes. A decree entered without a necessary party is ineffective against that party's interest, which is the most common defect in partition titles.

A lis pendens should be recorded at filing. It prevents an intervening transferee from acquiring an interest free of the decree and is expressly authorized by the statutes; failure to record it is the second most common defect.

Where the court cannot itself make the division, it appoints commissioners or a referee — disinterested persons, often including a surveyor and an appraiser — to view the property, propose an allotment, and report. The report is subject to objection and to confirmation by the court, which may modify or recommit it. On confirmation the interlocutory judgment establishes the interests and the manner of partition; the final judgment allots the parcels or confirms the sale, orders the accounting adjustments, awards costs and, in most jurisdictions, reasonable attorney's fees for the common benefit apportioned among the parties, and vests title.

The accounting is the mechanism by which the decree distributes the proceeds or equalizes the allotments according to the parties' actual contributions and benefits rather than according to their record percentages. Its statutory ancestor is the Statute of Anne, 4 & 5 Anne, c. 16, § 27 (1705), which gave an action of account against a cotenant who received more than his just share of the profits; its modern form is equitable and comprehensive.

The items ordinarily included, stated as credits to the cotenant who paid or debits to the cotenant who received, are: real property taxes and assessments; principal and interest on a mortgage encumbering the whole; hazard and liability insurance premiums; necessary repairs and maintenance; the cost of preserving the property against loss; rents and profits received from third parties; the reasonable rental value of exclusive occupancy, where chargeable; the proceeds of timber, minerals, or other substances removed; and the enhanced value attributable to improvements. Cal. Civ. Proc. Code § 872.140 states the principle compendiously: the court may order compensatory adjustments among the parties according to the principles of equity.

Three points recur. First, the accounting is generally confined to the partition action or to a separate action for accounting; a cotenant who fails to raise a claim in the partition may be barred by res judicata from raising it later. Second, the applicable limitation period ordinarily runs from each expenditure, so a cotenant who has carried the property for two decades may recover only for the statutory period, subject to the doctrine that in a partition the court may adjust equities without regard to limitations where the claim is asserted defensively against the same fund. Third, the accounting is equitable, and a cotenant guilty of ouster, waste, or concealment may find the discretionary items resolved against him.

A cotenant who discharges an obligation that burdens the whole estate is entitled to contribution from the others in proportion to their interests. The right rests upon unjust enrichment — the payment discharges a common burden and relieves each cotenant pro tanto — and it is stated in Restatement (Third) of Restitution and Unjust Enrichment §§ 23–27.

Taxes and assessments are the clearest case. A cotenant who pays them protects every interest from the tax lien and from forfeiture, and contribution is allowed without regard to whether the others consented. A related and important rule prevents strategic acquisition: a cotenant who buys the property at a tax sale, or acquires an outstanding paramount title, is generally held to have acquired it for the benefit of all, and may recover only the cost of acquisition with interest, because the confidential character of the cotenancy forbids one cotenant to profit from the common peril.

Mortgage payments stand on the same footing where the mortgage encumbers the entire fee: interest, principal, and any advances necessary to prevent foreclosure are contributable. Where the mortgage encumbers only one cotenant's undivided interest, payments upon it are that cotenant's own affair and are not contributable, and on partition the lien follows that cotenant's allotment or share of the proceeds.

Insurance premiums for coverage protecting the common property are contributable in most jurisdictions, though a minority treat insurance as a personal contract of indemnity and deny contribution absent agreement, allowing the insuring cotenant to retain the proceeds. Necessary repairs — those required to preserve the property, as distinguished from improvements that enhance it — are contributable in most modern jurisdictions and in the Restatement, notwithstanding an older rule denying contribution at law absent a request for the repair. The safer practice is to give written notice to the cotenants before incurring the expense; a cotenant who repairs after notice and refusal is on strong ground, and a cotenant who repairs in silence may be relegated to a credit in partition rather than an affirmative recovery.

An improvement enhances the property beyond preservation: a new structure, an addition, a substantial betterment. The general rule is that a cotenant may not compel contribution toward an improvement made without the others' consent. The reason is autonomy: no cotenant may be forced to invest in the common property at another's election, and to allow contribution would let one cotenant conscript the capital of the rest.

But the improving cotenant is not left without protection, because equity will not permit the non-improving cotenants to appropriate the value the improver created. On partition, protection is afforded in one of two ways. Where the property is divided in kind, the court allots the improved portion to the improver so far as feasible, valuing the allotment as though the improvement did not exist. Where the property is sold, the improver receives from the proceeds the amount by which the improvement enhanced the sale value — not its cost. The two figures are frequently different, and an improvement that cost a great deal and added little is a loss the improver bears alone.

Symmetrically, an improver bears the loss where the improvement diminishes value, and receives no credit for an improvement made after suit is filed in bad faith or in an attempt to influence the allotment. The improver is generally chargeable with the increased taxes and, where the improvement is income-producing, with the increased rents attributable to it.

Each cotenant is entitled to possession of the whole of the property; that is the unity of possession described in Chapter 16. It follows that a cotenant in sole occupancy is exercising a right, not committing a wrong, and the baseline rule is that the occupant owes no rent to the cotenants who have chosen not to occupy.

Liability for the reasonable rental value arises in four situations. The first is agreement, express or implied. The second is ouster: where the occupant excludes the others by act or by an unequivocal denial of their right to enter. A demand for entry and a refusal is the classic proof, though ouster may be established by conduct — changing locks, denying a claim of cotenancy, recording an adverse instrument. The third is where the occupant rents the property to a third party, in which case the rents received are accountable regardless of ouster. The fourth, and in practice the most important, is the offset rule: where the occupying cotenant claims contribution for taxes, mortgage payments, insurance, or repairs, the non-occupants may set off the reasonable rental value of the occupancy against that claim, even absent ouster, on the equitable principle that a cotenant who seeks the aid of the court in an accounting must submit to a complete accounting.

The rental value chargeable is the fair market rent of the property, not the profit the occupant realized from a business conducted upon it, and it is reduced by the occupant's own fractional share. Where the occupant is a spouse or family member remaining in a residence, several jurisdictions apply an equitable discretion to decline the charge — the family-home exception — particularly where the occupant remained at the others' sufferance or for the benefit of minor children.

Waste is the impairment of the property to the prejudice of another holding a concurrent or successive interest in it. The medieval action lay principally against tenants for life and for years — the Statute of Marlborough, 52 Hen. 3, c. 23 (1267), and the Statute of Gloucester, 6 Edw. 1, c. 5 (1278), which added treble damages and forfeiture of the place wasted — and Chapter 11 developed the doctrine as between a life tenant and a remainderman. Its extension to cotenants came by statute in England and by statute and decision in America.

Between cotenants the doctrine operates differently than between successive holders, because each cotenant has a present right to use the whole. The line is drawn not at use but at appropriation: a cotenant commits waste by consuming or destroying more than his fractional share of the substance of the property, or by acts that permanently reduce its value. Ordinary use, ordinary depletion, and reasonable exploitation consistent with the character of the land are not waste; demolition of a structure, removal of fixtures, and destruction of the value of the reversion are.

The remedies are an accounting for the value appropriated in excess of the actor's share, an injunction where the injury is continuing or the damage would be irreparable, and, under the timber-trespass statutes of many states, multiple damages — double or treble the value of the timber removed. See, e.g., Cal. Civ. Proc. Code § 733; Wash. Rev. Code § 64.12.030. A cotenant sued for waste is entitled to credit for the reasonable costs of extraction.

Timber. A cotenant may take timber for the reasonable maintenance and use of the land — estovers, in the older vocabulary — but a commercial cutting appropriates the substance of the common property and requires an accounting for the net proceeds in proportion to the other cotenants' interests. A cutting that exceeds good forestry practice or that clears the land may be enjoined.

Hard minerals. The rule in most jurisdictions is that a cotenant may extract minerals without the others' consent, because refusing to permit development would let one cotenant sterilize the estate, but must account to the non-consenting cotenants for their share of the net profits — gross proceeds less the reasonable costs of production, but not less any allowance for the developer's risk or entrepreneurial return in the stricter jurisdictions. A minority treat unauthorized extraction as waste subject to injunction.

Oil and gas. The problem is acute because oil and gas are fugacious and subject to drainage: a cotenant who declines to develop may lose the resource to a neighboring producer. The prevailing American rule permits any cotenant to drill and produce without the consent of the others, subject to an accounting to the non-consenting cotenants for their proportionate share of net profits after the recovery of reasonable drilling and operating costs. Louisiana requires the consent of cotenants owning at least eighty percent of the interest. A number of states supplement the cotenancy rules with compulsory-pooling and forced-integration statutes administered by an oil and gas conservation commission, which supersede the common law where they apply. A cotenant who executes an oil and gas lease binds only his own undivided interest; the lessee becomes a cotenant in the mineral estate and takes subject to the same accounting duty.

Because every cotenant has the right to possess the whole, the possession of one is presumed in law to be the possession of all, and is therefore not adverse. The presumption is the reason that a family member who occupies inherited land for forty years does not thereby acquire it. Chapter 6 developed the general elements of adverse possession; this section states the additional element the cotenancy requires.

To start the statute running against cotenants, the possessor must oust them: the possession must become hostile in fact and the hostility must be brought home to the excluded cotenants by acts so open, notorious, and unequivocal that knowledge of the adverse claim may fairly be imputed to them. Repudiation of the cotenancy, exclusion after demand, recording a deed purporting to convey the entire fee coupled with exclusive possession and the payment of all taxes, receipt of all rents with a denial of the others' right to share, and long-continued exclusive dominion without accounting have all been held sufficient in particular circumstances; mere sole occupancy, payment of taxes, and improvement have all been held insufficient standing alone.

Some jurisdictions impose a heightened requirement by statute — express written notice, or a longer limitation period, where the claimant is a cotenant. The practical consequence for heirs property is significant, and cuts both ways: the doctrine protects absent heirs from silent dispossession, while leaving titles clouded across generations in precisely the manner the UPHPA addresses.

A cotenant may alienate or encumber his undivided fractional interest without the consent of the others, and may not encumber theirs. A mortgage granted by one cotenant attaches to that interest alone; a judgment docketed against one cotenant becomes a lien on that interest alone; a federal tax lien under 26 U.S.C. § 6321 attaches to whatever interest the delinquent taxpayer holds under state law and no more.

On partition, these liens are transferred by operation of the decree. Where the land is divided in kind, the lien attaches to the parcel allotted to the encumbering cotenant and releases the remainder — the principle that the lienholder's security follows the allotment and is neither enlarged nor destroyed by the division. Where the land is sold, the lien attaches to the encumbering cotenant's share of the proceeds, and the purchaser takes free. A lien encumbering the entire property, by contrast, survives a division in kind as a charge on all parcels unless the decree provides for its discharge from the proceeds, and in a sale is ordinarily paid from the gross proceeds before division.

A creditor's power to force a sale of the whole is limited but real. A judgment creditor who levies upon and purchases a cotenant's fractional interest becomes a cotenant and may then file for partition. In bankruptcy, 11 U.S.C. § 363(h) permits the trustee to sell both the estate's interest and the interest of a co-owner where partition in kind is impracticable, the benefit to the estate outweighs the detriment to the co-owner, and the property is not used in the production of electric energy or certain other utilities; § 363(i) gives the co-owner a right of first refusal at the sale price, and § 363(j) requires distribution of the proceeds according to the respective interests. For federal tax liens, 26 U.S.C. § 7403 authorizes a judicial sale of the entire property with compensation to non-liable co-owners out of the proceeds, and United States v. Rodgers, 461 U.S. 677 (1983), holds that the district court has limited equitable discretion to decline such a sale, weighing the prejudice to the innocent co-owner against the government's interest — a framework repeatedly applied to entireties and homestead interests of the kind examined in Chapter 18.

Heirs property is land that has passed by intestate succession across one or more generations without probate administration, so that title is held by a large and often geographically dispersed group of tenants in common, each holding a small undivided fractional interest, frequently without a recorded deed and with no written agreement governing use. It is the dominant form of landholding among rural Black families in the American South, and it is common among Appalachian, Hispanic, and Native communities as well.

Its vulnerability arises from the intersection of four rules developed above: any cotenant may compel partition; partition by sale had in practice displaced partition in kind; a fractional interest may be freely purchased; and auction sales frequently realize a fraction of appraised value. The predictable consequence, documented in Thomas W. Mitchell's scholarship and in the Uniform Law Commission's prefatory note, was that a speculator could acquire a single heir's small interest, petition for partition, obtain a sale, and buy the land at auction for well below market — dispossessing the family in possession and distributing to them a nominal share. Land loss on this pattern is a principal cause of the collapse of Black landownership in the twentieth century.

The Uniform Partition of Heirs Property Act (Unif. Law Comm'n 2010) responds without disturbing the underlying right to partition. It applies where the property is heirs property as defined in § 2 — no recorded agreement binding all cotenants, some cotenants acquired title from a relative, and either twenty percent of the interests or twenty percent of the cotenants are relatives, or twenty percent of the interests are held by a person who acquired from a relative. The Act then substitutes a four-stage procedure:

1. Notice and determination. § 5 requires notice by posting on the property as well as by service, and § 6 requires the court to determine at the outset whether the property is heirs property; if it is, the Act governs.
2. Court-ordered appraisal. § 6 requires a determination of fair market value by a disinterested, licensed appraiser, with notice to the parties and an opportunity to object at a hearing — replacing the informal valuation on which auction sales had rested.
3. Cotenant buyout. § 7 gives cotenants who did not request partition the right to purchase the petitioning cotenant's interest at a price equal to the appraised value multiplied by that interest's fractional share, allocated among the electing cotenants in proportion to their interests, and payable within 60 days. The buyout converts a forced sale of the family land into a purchase of the outsider's stake.
4. Partition in kind preferred; open-market sale if not. If no buyout occurs, § 8 directs partition in kind unless it would result in great prejudice, and § 9 sets out the factors the court must weigh — including whether the property can be divided so that the portion allotted to each cotenant equals or exceeds that cotenant's share, evidence of collective duration of ownership, sentimental attachment including ancestral or other unique value, the lawful use being made and the harm from cessation of that use, and the degree to which cotenants have contributed taxes, insurance, and maintenance. Where sale is ordered, § 10 requires an open-market sale through a licensed broker at a price not less than the appraised value, with an auction permitted only if the open-market sale fails.

More than twenty states have enacted the Act, including Alabama, Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Iowa, Maryland, Mississippi, Missouri, Montana, Nevada, New Mexico, New York, Rhode Island, South Carolina, Texas, Virginia, and others, with the enacting statute typically codified within the general partition chapter. See, e.g., Cal. Civ. Proc. Code §§ 874.311–874.323; N.C. Gen. Stat. §§ 46A-70 to 46A-85. The Act is also recognized by federal farm programs, which now accept alternative documentation of heirs-property ownership for the purpose of obtaining a farm number and access to credit.

The doctrinal significance of the Act extends beyond heirs property. It supplies a legislative statement of the factors relevant to great prejudice, including expressly the non-economic factors that Delfino held relevant and that many courts had ignored, and it thereby restates the historical priority of partition in kind that the nineteenth-century sale statutes had eroded.

Trust interests. A beneficiary of a trust holds an equitable interest and may not compel the partition of the trust res; the beneficiary's remedy against a trustee's mismanagement lies in the law of trusts. The trustee, however, holds legal title and may partition, and Uniform Trust Code § 816 expressly confers the power to partition or exchange trust property. Where a trustee holds an undivided interest as cotenant with individuals, the trustee may sue or be sued for partition, subject to the trustee's fiduciary duties of prudence and impartiality — a duty developed at length in the Society's Trust Administration volume.

Life estates and future interests. Partition divides the present possessory estate. Concurrent life tenants may partition their life estate among themselves without prejudice to the remainder, which is precisely the result 32 Hen. 8, c. 32 was enacted to secure. A remainderman or reversioner may not compel partition, having no present possession. Many modern statutes nevertheless permit the joinder of future-interest holders and, on a showing that a sale of the entire fee is in the best interests of all, authorize the sale of the whole with the proceeds held in trust and the future interests attaching to the fund — a procedure that must be handled carefully where the Rule Against Perpetuities analysis of Chapter 15 is implicated.

Marital property. Tenancy by the entirety is not subject to partition at the instance of one spouse, because the estate rests upon the unity of marriage and neither spouse holds a severable share; divorce converts the estate into a tenancy in common or joint tenancy in most jurisdictions, after which partition is available. Community property is divided under the family code on dissolution rather than by the partition statute, though spouses may by agreement partition community property into separate property — a transaction the community-property statutes expressly authorize and treat as a transmutation. See Tex. Fam. Code §§ 4.102–4.106; Cal. Fam. Code § 850.

A partition decree is a muniment of title and must be recorded in the county where the land lies to bind subsequent purchasers. The recorded package should include the interlocutory judgment establishing the interests, the commissioners' or referee's report as confirmed, the survey and legal descriptions of the allotted parcels, the final judgment, and any owelty lien. Title examiners treat partition titles with care because the recurring defects are jurisdictional: an omitted necessary party, defective service by publication, an unrecorded lis pendens permitting an intervening conveyance, an inadequate legal description of an allotted parcel, and a decree that fails to dispose of a recorded lien.

Partition in kind is a subdivision of land and must comply with the local subdivision ordinance and zoning minimums; a decree allotting a parcel that cannot lawfully be conveyed or built upon creates an unmarketable title. Access is equally critical: each allotted parcel must have legal access, and where it does not, the decree should create an easement — a servitude of the kind Part VII will develop.

The planning lesson is that partition litigation is largely avoidable. Cotenants acquiring property together should execute and record a cotenancy agreement addressing management, the allocation of carrying costs, the treatment of improvements, occupancy and rent, buy-sell rights with a valuation mechanism, and a reasonable and time-limited deferral of partition. Families holding inherited land should probate estates, clear title, and consider conveying to a limited liability company or a trust — devices that substitute governance and transfer restrictions for the fragmentation that makes heirs property vulnerable in the first place.

The following table distinguishes the principal remedial concepts of this chapter. Confusion among them is the most frequent source of error in cotenancy litigation.

Two further distinctions deserve emphasis. Contribution and improvement credit differ in both trigger and measure: contribution is an affirmative right enforceable independently of partition and measured by the sum paid, while improvement credit is available only within a partition and measured by enhanced value. Owelty and accounting differ in temporal reference: owelty looks to the value of the allotments at the moment of division, accounting to the parties' conduct over the life of the cotenancy.

1. "A court can refuse partition if the other owners object." It cannot. Objection goes to the manner of partition, never to the right.
2. "Partition means the property is sold." Sale is the statutory exception. Division in kind is the presumptive remedy and the burden of displacing it rests on the party seeking a sale.
3. "Great prejudice means the sale would bring more money." A higher aggregate price is nearly always true and cannot be the test; the prejudice must be to the owners in their interests as owners.
4. "The parcels must be exactly equal or the land must be sold." Owelty exists precisely to equalize allotments that cannot be made mathematically equal.
5. "A cotenant in sole possession must pay rent." Not as a baseline. Liability requires ouster, agreement, third-party rents, or the assertion of a contribution claim triggering the offset.
6. "A cotenant who improves the property can force the others to pay for it." Contribution is denied for improvements. The improver is protected in partition by enhanced value or by allotment, and bears the loss where cost exceeds value added.
7. "Improvement credit equals what the improvement cost." The measure is enhanced value at partition.
8. "A cotenant can mortgage the whole property." A cotenant may encumber only his own undivided interest, and the lien follows that interest through the decree.
9. "Buying the property at a tax sale gives one cotenant sole title." A cotenant who acquires an outstanding or tax title is generally treated as acquiring it for the benefit of all, recovering only cost plus interest.
10. "Living on the land long enough gives a cotenant title by adverse possession." Possession by one is presumed possession by all; only an unequivocal ouster known to the others starts the statute.
11. "Any cotenant may extract oil, gas, or minerals and keep the proceeds." Most jurisdictions permit the extraction but require an accounting for the non-consenting cotenants' share of net profits.
12. "An agreement never to partition is void." A reasonable, purposive, time-limited restriction is enforceable; only a perpetual and unqualified restraint fails.
13. "The UPHPA abolishes partition for family land." It does not. It supplies appraisal, a buyout right, a statutory great-prejudice calculus, and open-market sale procedures, leaving the underlying right intact.
14. "Spouses holding by the entirety can partition." They cannot; the estate must first be converted, ordinarily by divorce or by joint conveyance.

Concurrent ownership creates a relationship the law will not compel anyone to continue. Partition is the remedy by which it is ended, and it is a matter of right: no cotenant may be held in the cotenancy against his will, and no court may refuse the remedy on grounds of hardship, motive, or convenience. That right is statutory in origin. Coparceners could compel division at common law by the writ de partitione facienda; joint tenants and tenants in common could not, until 31 Hen. 8, c. 1 (1539) and 32 Hen. 8, c. 32 (1540), from which every American partition statute descends. Sale was a later graft — English law admitted it only in 1868 — and the historical sequence explains the statutory structure still in force: division in kind is the rule, sale the exception available only on proof of great prejudice to the owners.

Judicial discretion, excluded from the question whether to partition, governs the question how. The court must consider whether the land can be physically divided consistently with zoning, subdivision, access, and use; it must weigh the non-economic interests of an owner in possession, as Delfino v. Vealencis requires; and where the parcels cannot be made exactly proportionate it must equalize by owelty, secured as a lien upon the richer allotment, rather than resorting to a sale. Procedurally, the action is local and in rem, requires the joinder of all interest-holders and lienholders, contemplates commissioners or a referee, and concludes in an interlocutory judgment fixing interests and a final judgment allotting or confirming, adjusting the equities, and vesting title.

Because partition proceeds in equity, the decree that dissolves the cotenancy also settles it. Contribution lies for taxes, mortgage payments, insurance, and necessary repairs — charges that burden the whole and relieve every interest — and the cotenant who acquires an outstanding or tax title takes it for the benefit of all. Contribution does not lie for improvements, which no cotenant may compel another to finance; the improver is protected instead by allotment of the improved portion or by credit for enhanced value, never cost. Sole occupancy is lawful and rent-free at the baseline, becoming compensable on ouster, on agreement, on the receipt of third-party rents, or by way of offset when the occupant seeks contribution. Waste restrains appropriation beyond a cotenant's share: timber cut commercially, minerals extracted, and oil and gas produced are all subject to an accounting for net profits, with statutory multiples available for timber trespass. And because possession by one cotenant is presumed to be possession by all, adverse possession between cotenants requires an ouster unequivocally brought home to those excluded.

Third-party interests follow the fractional interest they encumber. A cotenant may mortgage or subject to judgment only his own undivided share; on division the lien attaches to that cotenant's allotment, and on sale to that cotenant's proceeds. Federal law supplies the principal exceptions permitting a sale of the whole — 26 U.S.C. § 7403 as construed in United States v. Rodgers, and 11 U.S.C. § 363(h)–(j) in bankruptcy — each subject to protections for the non-liable co-owner. Trust beneficiaries cannot partition though trustees can; concurrent life tenants may divide the possessory estate without prejudice to the remainder; tenancy by the entirety is not partible until the estate is converted; and community property is divided under the family code rather than the partition statute, though spouses may partition community into separate property by agreement.

The most significant development of the present generation is the Uniform Partition of Heirs Property Act. It addresses a specific and documented failure: the use of the partition-by-sale remedy, coupled with low-attendance auctions and the free alienability of fractional interests, to dispossess families — overwhelmingly Black rural families — of inherited land at a fraction of its value. The Act leaves the right to partition intact but reorders the remedy: mandatory appraisal, a cotenant buyout of the petitioner's interest at appraised value, an express and largely non-economic statutory calculus of great prejudice, and, where sale is unavoidable, an open-market listing at not less than appraised value. Enacted in more than twenty states, it restates for modern practice the priority that the Henrician statutes assumed and that a century of sale decisions had eroded.

Part VI is now complete. Chapter 16 stated the general law of concurrent ownership; Chapter 17 developed joint tenancy and survivorship; Chapter 18 the marital estate by the entirety; Chapter 19 the civil-law community regime; and this chapter the remedies by which co-ownership is administered and brought to an end. Each of these chapters concerned the relations among persons who own the same estate in the same land.

Part VII turns to a different subject. Its concern is not shared ownership but nonpossessory interests in the land of another — rights to use, to take from, or to restrain the use of land that one does not own and will not possess. These are the servitudes: easements, profits, real covenants, and equitable servitudes, unified in the modern Restatement (Third) of Property: Servitudes but historically distinct in origin, in the courts that enforced them, and in the requirements for their creation and their running to successors. Chapter 21 begins with the easement, the foundational servitude, examining affirmative and negative easements, appurtenant and in gross, express creation, implication from prior use and from necessity, prescription, estoppel, scope and surcharge, transfer and apportionment, and termination. The reader should carry forward from Part VI the distinction that organizes what follows: the doctrines just concluded allocate a possessory estate among its co-owners, while the doctrines to come burden one owner's possessory estate for the benefit of another's.

• 2 William Blackstone, Commentaries on the Laws of England *179–*194 (1766).
• Edward Coke, Coke on Littleton §§ 241–323 (1628).
• 2 Frederick Pollock & F. W. Maitland, The History of English Law Before the Time of Edward I 274–318 (2d ed. 1898).
• A. W. B. Simpson, A History of the Land Law (2d ed. 1986).
• J. H. Baker, An Introduction to English Legal History (5th ed. 2019).
• 2 James Kent, Commentaries on American Law *350–*373 (1827).
• 7 Powell on Real Property ch. 50 (Michael Allan Wolf ed.).
• 2 American Law of Property §§ 6.17–6.26 (A. James Casner ed. 1952).
• Uniform Partition of Heirs Property Act (Unif. Law Comm'n 2010), with Prefatory Note and Comments.
• Thomas W. Mitchell, From Reconstruction to Deconstruction, 95 Nw. U. L. Rev. 505 (2001).
• Thomas W. Mitchell, Reforming Property Law to Address Devastating Land Loss, 66 Ala. L. Rev. 1 (2014).
• Restatement (Third) of Restitution and Unjust Enrichment §§ 23–27 (2011).
• Real Law Society Press, Foundations of Property Law (2d ed.), Chapters 16–19.