The right to partition, to get a court order compelling the sale of real estate and distribution of the net sale proceeds, is a confusing subject often misunderstood by family lawyers. Cohabiting parties frequently purchase real estate together. How that real estate is titled will make a world of difference if those parties separate. It is not uncommon for one party to move out. What happens then? You’ve heard the phrase “possession is 9/10ths of the law.”
A problem arises when the real estate is titled to them as “joint tenants with full rights of survivorship” (or similar words indicating an intention that each shall have 'survivorship rights'). Then, the partner remaining in the house decides to play rough, he or she can make life difficult for the other party, by refusing to sell the real estate and distribute the monies.
As a practice pointer, avoid titling real estate as joint tenants with survivorship rights if the parties are not married. An alternative, if survivorship rights are wanted as part of “informal estate planning” by unmarried cohabitants, be sure the couple has a solid cohabitation agreement that binds each party contractually to their agreed-upon means of distribution in the event the relationship ends prior to death of one of the parties.
We’ve had earlier discussions on the State Bar of Michigan's Family Law ListServ about this problem. The controlling case is Albro v Allen, 434 Mich 271, 274-275 (1990). Download Albro v. Allen For a brief, clear explanation of why partition is not available, see Ostrander v Ostrander, decided on April 12, 2005.
The rights of cohabitants have long been of special interest to Jeanne Hannah. To contact Jeanne Hannah with your questions or to view her Family Law website, click here.