Chapter 26 - § 26.6 • PARTITION

• Jurisdiction: Colorado

§ 26.6 • PARTITION

§ 26.6.1—In General

A partition suit and demand for accounting is an equitable proceeding.²⁷⁵ Generally, an action for the division and partition of real property or interests therein may be maintained by any person having an interest in the property.²⁷⁶ The right to partition is absolute and unqualified.²⁷⁷ Nevertheless, three exceptions to the right of partition are recognized: (1) when the right to partition has been waived by contract or otherwise restricted;²⁷⁸ (2) when the interests are not contemporaneous;²⁷⁹ and (3) when the subject property is a homestead in which family, particularly children, reside.²⁸⁰ In a condominium, however, common elements are not subject to partition except as specifically allowed for by statute.²⁸¹

The right of partition may be contracted away.²⁸² An agreement not to partition may be implied as well as express, and will be readily implied and enforced if such implication is necessary to the fulfillment of an agreement between the co-tenants, or if the granting of the partition would destroy the estate sought to be partitioned.²⁸³

An ex-spouse may seek statutory partition after the entry of the final dissolution decree, but the partition order may not conflict with the explicit provisions of the decree.²⁸⁴

§ 26.6.2—Parties

All persons having any interest, direct, beneficial, contingent, or otherwise in the property must be made parties.²⁸⁵ The statute does not, however, abrogate the common-law rule that partition applies only to concurrent interests.²⁸⁶ It makes no difference whether the property is held in tenancy in common or joint tenancy.²⁸⁷ A person having no interest in the property cannot maintain an action for partition;²⁸⁸ partition cannot be had of property which is not owned by two or more persons.²⁸⁹

A mortgagee, whose interest will not be affected by the partition, is not an indispensable party.²⁹⁰ Estate beneficiaries are not indispensable parties to a partition action commenced by the personal representative where the property of the decedent is not being divided among the beneficiaries themselves.²⁹¹

§ 26.6.3—Procedure

Process, practice, and procedure in a partition action are governed by the Colorado Rules of Civil Procedure.²⁹² The Denver Probate Court has exclusive jurisdiction over partition of real property of an estate in connection with the settlement of the estate.²⁹³

§ 26.6.4—Adjudication

In a partition action, the court must make a complete adjudication of the rights of all parties to the property.²⁹⁴ This provision is merely incidental to the main purpose of the proceedings, and does not warrant a partition proceeding to perform the functions of an action to quiet title.²⁹⁵

The court at any time may make such orders as it may deem necessary to promote the ends of justice to completely adjudicate every question and controversy concerning the title, rights, and interest of all persons whether in being or not, known or unknown, and may direct the payment and discharge of liens and have the property sold free from any lien or may apportion any lien among the persons to whom the partition is made.²⁹⁶ But it is improper for a court to order one tenant to sell his or her interest to the other co-tenant.²⁹⁷

The court will not only decree the division of the estate, but will adjudicate other rights and equities of the parties growing immediately out of the common tenancy, and adjust its decree to the full exigency of the case.²⁹⁸ Once the property has been divided, the court may then, to reach an equitable result, compute the contribution of each party and offset any amount owing against the share held by each party.²⁹⁹ If rents and profits have been enjoyed by one tenant in excess or exclusion of the co-tenant, it will direct an amount and decree payment. If one tenant has made valuable improvements on the common estate, they will be set apart to him or her or contribution will be decreed.³⁰⁰ The amount allowed is the amount by which the improvements enhance the value of the property, not the cost thereof or the original amount expended in making the improvements.³⁰¹ So also if one tenant has paid an encumbrance upon the estate, or has made advances in excess of his or her proportion of the purchase money.³⁰²

The court's function when deciding a partition action is not to create new interests in property held by tenants in common, but is merely to sever the unity of possession owned by the tenants,³⁰³ although the court has discretion to create easements to facilitate a partition in kind.³⁰⁴ Therefore, when partitioning property held by tenants in common, each with an undivided one-half interest, the court should only assign the one-half interest in the property to each tenant, and cannot grant a greater share of the property to either.³⁰⁵

§ 26.6.5—Commissioners

Upon the entry of an order for partition, the court must appoint one or more disinterested commissioners who must take an oath to fairly and impartially make partition of the property in accordance with the decree of court.³⁰⁶

§ 26.6.6—Partition in Kind

Partition in kind is favored over partition by sale, and the former should be ordered unless doing so would result in manifest prejudice to the parties.³⁰⁷

The commissioners must view the property and make...