Partitioning Property

Asking the Court to Remove Yourself or Someone Else from a Deed

You’re locked into a deed with your siblings, land you inherited from your parents. Everyone agreed 4 years ago to sell the property, but your brother is still living there and has no discernable plan to leave. As a cotenant, he has a right to live there. But, you also have rights.

Contribution, Accounting, and Quantum Meruit

The equitable right of contribution is the right of a party to seek contribution towards expenses from another party. "The general rule of contribution is that one who is compelled to pay or satisfy the whole or to bear more than his aliquot share of the common burden or obligation, upon which several persons are equally liable or which they are bound to discharge, is entitled to contribution against the others to obtain from them payment of their respective shares." Caldwell v Fox, 394 Mich 401, 417; 231 NW2d 46 (1975). When a Court ‘sits in equity’, it means that the judge will use their judgment to place both parties on even footing. This is not strictly legal interpretation. The Court sitting in equity does not strictly interpret the law and apply the facts of the case to it, but rather uses principles of fairness and justice to resolve a dispute.

Accounting is the right of a party to examine financial information. Parties who own property together will have expenses. An accounting is another equitable remedy that allows one party to demand the financial records of another - at least in relation to the disputed property.

Quantum Meruit is another equitable remedy which asks a Court to order that money which unjustly enriched someone else be given back.

Partition

A Partition action is also an equitable remedy to split or sell property so that a co-owner can get out of the benefits and burdens of ownership. There are multiple avenues this can go down, so bear with me.

A tenant in common, or joint tenant without rights of survivorship, can go to court and request partition. The traditional common law partition action would split a parcel of property into multiple sub-parcels, but with smaller parcels and township zoning, the law had to evolve. If a parcel is too small, or if splitting would be impractical (such as when there is one house on the property, which of course cannot be split into two houses), the Court can instead order a sale of the property. The property will be appraised and then given to a court-appointed receiver who will conduct a sale of the property - usually at auction. The parties will each receive their equitable portion of the sale. The sale is often for a lower price than listing on the open market with a realtor and waiting for a buyer.

A tenant in common heir who received the property from their relative can follow the new partition law, MCL 600.3402. This law adds a step which allows a co-owner to buy out the interest of the other owners at an appraised price. While this option is always available as a settlement option outside of court, now it is an explicit step which helps to keep property in a family, and prevents the lower value that comes from an ordinary partition action.

This leaves one more avenue. Under Hrit v. McKeon, No. 317988 (Mich. App. Feb 03, 2015), an unpublished Michigan Court of Appeals decision, and under the common law and longstanding practice in Michigan, a partition action will fail when the deed is held by Joint Tenants with Rights of Survivorship (JTWROS). Under this precedent, it is difficult to get out of co-ownership by going to the Courts. You also cannot sell your personal stake in the property without the agreement of the other co-owners. On the other hand, a joint tenancy without rights of survivorship can be partitioned, as well as the classic tenancy in common.

My personal opinion is that people should be able to go to Michigan Courts for remedies when they are in an extraordinary bind. The Courts often pat themselves on the back with decisions like this by ‘encouraging settlement’, but there are many offramps to litigation that don’t completely foreclose a cause of action for typical ordinary folks who don’t know everything about the law. If you inherit property as a JTWROS under a ladybird deed, for example, thereby becoming an owner in this property through technical legal language and through no fault of your own, you should be able to go to Court to partition off your interest in the property. This may very well be the situation that breaks Hrit, as the Court in Hrit put weight on the fact that the JTWROS both signed the deed. The case that overturns Hrit (and if you haven’t cottoned on, I think it should be overturned) might the situation where the JTWROS inherited the property and wants to get out of it. Alternatively, the Michigan Legislature can change the law to allow partition in JTWROS, but I digress.

There you have it. A partition action might not be available to you, but likely at least a Contribution and Accounting action will be. With any of these actions, settling may be preferable to litigating, which could include selling a co-owner’s interest in the property to another co-owner. We will typically examine the situation fully, send a demand letter outlining the legal rights of remedies of the parties and requesting settlement, and then escalate to a summons and complaint if necessary. Please contact us if you need help getting out of your deed.