Detailed Answer
Short overview: When co-owners of real property in Rhode Island cannot agree how to divide or use the property, any co-owner may ask the court to force a partition. The court can order a physical division (partition in kind) or sell the property and divide the proceeds (partition by sale). Partition actions are governed by Rhode Island property law and are brought in the Rhode Island Superior Court for the county where the property lies.
Who can file?
Any person or entity that holds a legal ownership interest in the property (for example, tenants in common or joint tenants) may file a partition complaint. A mortgagee, lienholder, or other party with an interest may be joined as a defendant so the court can account for liens and mortgages in the final distribution.
Where to file
File the partition complaint in the Rhode Island Superior Court in the county where the property is located. Find Superior Court information at the Rhode Island Judiciary: https://www.courts.ri.gov/Courts/SuperiorCourt/Pages/default.aspx.
Statute authority
Partition actions in Rhode Island are addressed by the state statutes covering partition. See Rhode Island General Laws, Title 34 (Property), Chapter on Partition for statutory procedures: https://webserver.rilin.state.ri.us/Statutes/TITLE34/34-7/INDEX.HTM. (This page lists the partition provisions used by courts when deciding how to divide or sell property.)
Typical step-by-step process
- Pre-filing steps: Conduct a title search and collect documents showing ownership (deeds, wills, trusts, mortgage statements). Try negotiation or mediation first — courts often expect parties to attempt resolution.
- Prepare and file the complaint: The complaint should identify the property by legal description, name each owner and known lienholders, state each party’s claimed ownership share, and request partition (in kind or by sale) and any related relief (accounting for rents, payment of mortgage/liens from proceeds, appointment of commissioners or a referee, and costs).
- Service on all interested parties: After filing, the plaintiff must serve the complaint and summons on every co-owner and any party with a recorded interest (mortgagees, lienholders). Proper service is required so the court can bind all interested parties.
- Defendants respond: Co-owners and lienholders can file answers, assert defenses, dispute shares, or ask the court to order a sale instead of division. They may also raise claims about improvements, waste, or contributions for expenses and taxes.
- Pretrial procedures: The court may order discovery, valuation appraisals, or mediation. Expect motions about claims to specific portions, offsets for contributions, or requests to restrict sale until certain liens are resolved.
- Appointment of commissioners or a referee: If the court finds partition in kind feasible, it may appoint commissioners (or a referee) to physically divide the land, allocate lots, or recommend how to split the property. The court supervises their report and can approve or adjust it.
- Partition by sale: If the property cannot be fairly divided in kind (for example, a single-family home on one lot), the court may order a sale. The court typically directs how the sale will be conducted, ensures notice to interested parties, and supervises the distribution of net proceeds after paying liens, taxes, and sale costs.
- Distribution and final decree: After division or sale, the court issues a final decree identifying who gets which parcel or how sale proceeds are distributed. The decree accounts for mortgages, liens, taxes, necessary reimbursements (e.g., for improvements or payments of mortgages by one co-owner), and the court’s costs and fees.
- Appeals: Parties unhappy with the outcome may have the right to appeal under normal civil appellate rules.
Practical issues the court considers
- Whether partition in kind is practicable without unfairness to co-owners.
- Current fair market value and whether division would be inequitable by acreage or quality of parcels.
- Mortgages, mechanic’s liens, and other encumbrances — these generally remain liens on the property and are paid from sale proceeds.
- Contributions by co-owners: the court can account for payments for taxes, mortgage payments, necessary repairs, or improvements and may offset these amounts in the distribution.
- Costs: filing fees, appraisal fees, commissioners’ or referee fees, closing costs, and attorney fees (some may be awarded depending on facts and court discretion).
Hypothetical example
Two siblings own a house as tenants in common. One sibling wants to sell and split proceeds; the other wants to keep the house. After negotiation fails, the selling sibling files a partition complaint in Rhode Island Superior Court naming the other sibling and the mortgage lender. The court orders an appraisal, appoints a commissioner who reports that a physical split isn’t practicable, and orders a supervised sale. After paying the mortgage and sale costs, the court enters a decree distributing net proceeds according to each sibling’s ownership share, adjusted for the sibling who paid more on the mortgage.
Quick references: Rhode Island Superior Court information: https://www.courts.ri.gov/Courts/SuperiorCourt/Pages/default.aspx. Rhode Island partition statutes: https://webserver.rilin.state.ri.us/Statutes/TITLE34/34-7/INDEX.HTM.
Disclaimer: I am not a lawyer. This article explains general Rhode Island law concepts and is not legal advice. For help specific to your situation, consult a licensed Rhode Island attorney.
Helpful Hints
- Before filing, get a professional appraisal and run a title search to identify all owners and encumbrances.
- Try mediation or a buyout proposal — courts appreciate efforts to settle and it can save time and expense.
- Document contributions (mortgage payments, taxes, repairs) — the court may compensate the paying co-owner.
- Expect the court to prefer partition in kind when fair and practical; if not, expect a sale.
- Include mortgage and lienholders in the case so the court can clear liens or direct payment from proceeds.
- Plan for costs: appraisals, court filing fees, commissioner/referee fees, sale costs, and possible attorney fees.
- Ask about tax consequences of a sale (capital gains, basis adjustments) — consult a tax professional.
- Hire a Rhode Island real estate attorney early if stakes are high or ownership is disputed; they can prepare pleadings, represent you at hearings, and help negotiate settlements.