Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Detailed Answer
In Pennsylvania, co-owners of real estate who hold title as tenants in common may file a partition action to physically divide or sell the property and split the proceeds. This right exists under the Partition Act, 68 P.S. § 2501, which states that “Any tenant in common of real estate may maintain an action for the partition of such real estate.” 68 P.S. § 2501.
However, most married couples in Pennsylvania acquire real estate as tenants by the entirety. That ownership form bundles spouses’ interests into one undivided whole and prevents either spouse from unilaterally partitioning the property while the marriage exists. Separation alone does not convert an entireties estate into a tenancy in common.
If you discover your deed lists you and your spouse as tenants in common, you may proceed with a partition complaint in the Court of Common Pleas in the county where the property lies. The court typically appoints a referee to survey and allocate parcels or order a sale and division of net proceeds.
If your property is held as tenants by the entireties, you cannot force a partition action before the final divorce. Instead, you have two main options:
- Obtain your spouse’s written consent to convert the title to tenants in common and then file a partition action.
- Include the property in an equitable distribution claim during your divorce under the Divorce Code, 23 Pa. C.S. § 3501 et seq. (23 Pa.C.S. § 3501 et seq.). The court can award you an interest or transfer title as part of the divorce decree.
Key steps for a partition action (if tenants in common):
- Review your deed and confirm co-ownership as tenants in common.
- Draft and file a partition complaint in the Court of Common Pleas.
- Serve your spouse with the complaint and summons.
- The court may appoint a referee to survey, divide, or sell the property.
- Follow the referee’s report and court order to finalize the partition.
Keep in mind that partition actions can be costly and adversarial. Many couples negotiate a buyout or sale agreement without court intervention.
Helpful Hints
- Examine your deed for language like “tenants in common” or “tenants by the entirety.”
- Consult a title company or real estate attorney to confirm your ownership type.
- Gather financial records showing contributions toward mortgage, taxes, and improvements.
- Consider mediation or a separation agreement to address property division before filing court actions.
- Weigh the cost of litigation against a negotiated settlement or buyout.
- File partition in the county where the property is located.
- Understand that partition divides assets physically or monetarily, while equitable distribution reallocates assets in divorce.