5 minute read

How to Stop a Petition to Partition: What You Need to Know

While it is difficult to stop a petition to partition, there are favorable solutions for co-owners. Learn more about how to stop partition action here.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

A petition to partition is a tool by which co-owners can enlist the services of the court to decide what to do with their real estate. Technically, it is a legal process that will decide what to do with a property when co-owners can’t come to an agreement. As such, it is often a process with a binary outcome: win or lose. Fortunately, however, there is a middle ground which may provide favorable solutions for all.

Learning how to stop a petition to partition may be the best option for everyone involved, whether they realize it or not. If you want to learn how to stop a petition to partition, or simply want to learn more about the options made available to co-owners, please keep reading. 

Our guide was designed to give real property owners all the tools they need to stop or challenge a partition action, including, but not limited to:

Can a partition action be stopped?

The forcible sale of inheritance is something nobody wants to think about, which begs the question: Can a partition action be stopped? To be perfectly clear, a partition action can be stopped, but learning how to stop a petition is easier said than done. The overwhelming majority of  partition actions can’t be stopped. 

There are only two things that can officially stop a partition action: fraud and duress. Evidence of fraudulent activity on behalf of any of the co-owners or threats made to influence the outcome of the case may be grounds for stopping a partition action lawsuit. That said, fraud and duress are extremely uncommon, and should never be used. However, there are ways to either defend against or fight the process once a trial is underway.

How do you fight a partition?

Instead of learning how to stop a petition to partition, it may be more worthwhile to learn how to fight or defend against one that’s already begun. If for nothing else, stopping a partition action once it has gone to trial is rare. It is much more common to successfully fight a partition action once the trial is underway. 

Defendants are awarded several options to either help them win or lessen the impact of the final verdict. The defense tactics used will depend on each individual case, but defendants should be aware that there are several ways to fight a partition, the most popular of which are outlined in the rest of this guide.

How to stop a petition to partition: 3 common solutions

It is entirely possible to prevent or stall a petition to partition. That’s not to say every case is defensible, but rather that there are steps that can place the odds of winning in your favor—or at least not losing. 

There are a number of strategies which may help defendants, but different cases will call for different approaches. Here are three of the most popular strategies defendants will use to stop someone from selling jointly owned real estate:

  1. Review contractual agreements

  2. Sell your share to another co-owner

  3. Secure a buyout of your co-owner’s share

1. Review contractual agreements

Buying real estate has become synonymous with mountains of paperwork, and rightfully so; there’s a lot at stake with every large transaction. Most of the documents provide a physical paper trail of transactions, contingencies, and anything else that’s important to the overall process. That said, it is not uncommon for impending joint owners to include additional documents to protect their own interests. 

Contractual agreements, for example, are common when two or more people agree to buy a single property. Often included in the contractual agreements are rules that specifically state the right to partition may not be exercised, or at least not within a specific timeframe. To that end, some contracts may even require mediation or arbitration (not litigation) to resolve any discrepancies over ownership. In the event owners signed such a contractual agreement, they may not be able to pursue a partition action.

2. Sell your share to another co-owner

Another way to prevent a partition action from forcibly selling a home on the open market is to sell your own equity in the property to the other co-owner. Doing so will simultaneously prevent the home from being sold to someone else and result in a generous payday. While you may not have any equity in the home anymore, the property was never forcibly sold by the court and the other owner will retain ownership.  

3. Secure a buyout of your co-owner’s shares

Provided you want to retain ownership of the home, there's always the option to buyout the other owner(s). Once again, offering to buy another owner’s equity will prevent the court from selling the home. Instead, the other owner will simply sell you their stake in the property for fair value. Some owners who buyout the others may do so with the intention of holding the property forever. Others may simply want more time to fix the house up, only to sell at a later date. Either way, it is possible to prevent a partition action by simply offering to buy the remaining equity.

Are there alternative defenses to partition action?

We have already established that a partition action may be difficult to stop. Other than evidence of fraudulent activity or outside influence, there’s not much that can stop partition action. It is also possible to stall or prevent partition action with contractual agreements or qualifying transactions between co-owners. Either way, the options are limited. 

If you are less interested in stopping or preventing partition action, and more interested in defending against it in a court of law, consider the following alternatives:

  • Challenge the plaintiff’s title interest: In order for an owner to even petition for partition, they must be a co-owner with equitable interest. As a result, the first thing you’ll want to do is challenge the plaintiff’s title interest claim. Perhaps changes were made to the Will or the right of survivorship was called into play. Without actual ownership, they will have no case.

  • Request a waiver of the right to partition: While extremely rare, it is possible that owners waived their right to partition when they originally purchased the property. If, by some chance, the co-owners waived their right to partition, a valid waiver can remove the right to partition. 

  • Reduce costs as much as possible: If learning how to stop a petition to partition is out of the question, you may be able to at least lower your costs. Whether getting in the good graces of the court or being awarded attorney fees in some states, there are things you can do to limit your costs.  

  • Refinance the home and buy out the co-owners: As perhaps the most common defense, some co-owners will elect to refinance the home and buy out the other owners. 

  • Attempt to recover offsets, reimbursements, and attorney’s fees: Some states allow individuals in a partition action case to recover attorney’s fees, costs, credits, and reimbursements. Keep careful records of each payment in case you are awarded offsets. 

  • Prove a co-owner’s offsets exceed their equity: Though rare, some plaintiffs may find that offsets exceed the equity they are fighting for. If that’s the case, the court may not allow a partition action to proceed.

  • Request a partition in kind: A partition in kind will ultimately split the property into equally valuable shares. While real property can’t be physically divided, it is common for land to be the subject of a partition in kind. In doing so, the land will not be sold, but rather distributed fairly between owners.

Make sure your property wishes are respected: update your estate plan

Petitions for partition are never an easy topic for co-owners to discuss. At the very least, the right to partition suggests some sort of division has taken place amongst ownership. If you find yourself on the wrong side of one of these suits, it may be a good idea to learn how to stop a petition for partition. Knowing how to stop someone from selling property that belongs to you could save a lot of time, money, and headaches. Or, better yet, clarify your intentions for a respective property in your estate plan, as to avoid the need to even consider partition action.

Here at Trust & Will, we’re here to help keep things simple. You can create a fully customizable, state-specific estate plan from the comfort of your own home in just 20 minutes. Take our free quiz to see where you should get started, or compare our different estate planning and settlement options today!

Is there a question here we didn’t answer? Browse more topics in our learn center or chat with a live member support representative!

Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.


Subscribe to our newsletter for expert estate planning tips, trends and industry news.

    • Trust Pilot
    • Pledge 1%
    • Certified B Corporation
    • Better Business Bureau Accredited
    • SOC2 Certified