8.13 Right to Partition

• Library: Real Estate Practice Deskbook (2019 Ed.)

1. (§8.13) Right to Partition

Subject to the exceptions noted below, any cotenant entitled to bring a partition suit has an absolute right to have the property partitioned or sold. There is no requirement that the plaintiff prove that partition would benefit the cotenants; the right to partition is considered an inherent right of cotenancy. See Haeussler v. Mo. Iron Co., 19 S.W. 75 (Mo. 1892). "The right of partition is an absolute right, which yields to no consideration of hardship or inconvenience." Id. at 77.

Only owners of the requisite interests in property have a right to partition. See §8.11, supra. The party bringing a partition action has the burden of proof to establish an ownership interest in the property. Schwarberg v. Grace, 526 S.W.2d 83, 85 (Mo. App. E.D. 1975). If the plaintiff cannot establish title to the property, a partition suit will not lie. Long v. Conrad, 42 S.W.2d 357, 362 (Mo. 1931). The defendant also may raise a defense establishing that the plaintiff has no interest in the property. Podschun v. Rice, 769 S.W.2d 441, 443 (Mo. App. W.D. 1989).

The mere lapse of time since the creation of the cotenancy will not prohibit a cotenant from suing for partition. Bass v. Rounds, 811 S.W.2d 775, 779 (Mo. App. E.D. 1991). A

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