Partitioning Real Estate and Land in Tennessee by Lawsuit: Does the Court Divide It, or Sell It?

By J. Ross Pepper on April 30, 2013 8:29 AM

In Nashville, as well as all other Tennessee cities and counties, there is plenty of land--- commercial, residential, rural, and urban--- that is owned by more than one person as tenants in common, also sometimes referred to as "co-tenants." There can be two tenants in common or more, to a single piece of real estate.

The fundamental distinction of tenants in common is that each has an undivided interest, equal to their ownership share, in the entire piece of real estate. So, if there are two tenants in common, each has an undivided one-half interest in the entire property. Thus, both have the right to use all of the property and to share in the profits made from it, if any. Joint ownership of this nature, not surprisingly, frequently results in conflicts and problems. And, frequently, those conflicts and problems cause one, or more, of the co-tenants to seek the help of a Tennessee court by filing a partition lawsuit.

In Tennessee, the right of a co-tenant to have real estate partitioned is absolute. Tennessee law follows the rule that, if you do not want to continue to have to own property with another co-tenant or co-tenants, you don't have to do so. If you file a partition action, a Tennessee court must partition the real estate. A Tennessee court cannot deny you your right to get out of your tenancy in common.

When a partition action is filed, although a Tennessee court cannot deny the right to partition, it can, and must, decide whether the partition will be by sale or, on the other hand, "in kind." If real estate is partitioned by sale, it is sold and the proceeds are divided between, or among as the case may be, the tenants in common--- the co-owners. If real estate is partitioned in kind, it is divided among the co-tenants by the court.

Tennessee law favors a partition in kind, and a party seeking a partition by sale bears the burden of proving that a partition by sale is warranted by law. In spite of that presumption, a review of Tennessee court decisions reveals that, in many cases, it is not too difficult for a party to prove that a partition by sale is warranted.

Under the Tennessee partition statutes, a person is entitled to a partition by sale if he or she can prove either: (1) That the real estate is so situated that it cannot be divided; or (2) that it would be "manifestly to the advantage" of the co-owners for the property to be sold instead of divided. Here is a rule of Tennessee law to remember about partition actions: Even if the property can be evenly divided, that does not necessarily mean that a partition by sale will not be ordered. Why? Because, in many cases, even though the property can be divided into equal shares, if so divided, each, or some, co-owner's land would be worth less than what he or she would receive if the real estate was sold, as a whole, before it was divided.

In each of the following Tennessee cases, the courts ruled that a partition by sale was appropriate in the face of an argument by one or more tenants in common that the real estate should be divided and not sold. They are worth a look if you are involved in a partition action. Here they are:

McKenzie Banking Company v. Couch (Tenn. Ct. App. 2010): A case involving commercial property with a building located in Humboldt County, Tennessee ordered sold.
Hale v. Hale (Tenn. Ct. App. 2011): A case from Van Buren County involving 74 acres of rural property ordered sold.
Potts v. Rogers (Tenn. Ct. App. 2004): A case from Hamilton County involving a 115 acre tract of land ordered sold.
Bevins v. George: (Tenn. Ct. App. 1952): 598 tract in Loudon County ordered sold.
Nicely v. Nicely (Tenn. Ct. App. 1956): 68 acres in Grainger County ordered sold.