LAYING DOWN THE LAW with Christopher J. Charles, Esq., Provident Law®
Partition Actions (part I of III)
Joint ownership of real estate provides many benefits, including increased buying opportunity, shared expenses, avoidance of probate, and shared risk/liability. Co-ownership also provides opportunities for disagreement. Indeed, a significant risk associated with any shared interest in real property surrounds the question of how to equitably divide the real property in the event that fewer than all joint owners wish to sell their interest in the property. In other words, what options exist if one, but not all, of the joint owners want to sell the property? The answer to this question is easy as long as the joint owners had the providence to negotiate and execute a thorough tenancy in common agreement that addresses when and how a joint owner may sell their interest in the real property and under what circumstances the real property may be sold.
Sadly, the reality is that most tenancy in common arrangements do not include a written tenancy in common agreement. In those instances, if one but not all of the joint owners wish to sell the property, an impasse arises that effectively places the parties in a stalemate regarding the future of the property. Ideally, one of the joint owners will purchase the departing joint owner’s interest in the property, but if the parties cannot reach agreeable terms or if it is not desirable to purchase the departing joint owner’s interest, the next viable option is typically to sell the property to a third party and to equitably divide the proceeds from the sale of the property to the joint tenants.
Toward that end, the Arizona legislature has given us the partition statute, A.R.S. § 12-1211. A real estate partition action in Arizona is a legal process used to resolve disputes between co-owners of a property who cannot agree on its use or disposition. The judicial partition process allows one or more joint owners to request the court to divide the property or sell it and distribute the proceeds among the owners.
This article is the introductory bookend to a three-part series summarizing the ins and outs of real estate partition in Arizona. The second part of this partition series will provide a helpful overview of the legal precedent that directs how the sales proceeds are to be equitably distributed to joint owners in a partition case. And the third and final article will discuss important practical and legal considerations for every partition scenario.
Under the judicial partition by sale process, the property is sold by a court appointed real estate broker referred to as a “Special Commissioner,” and the proceeds are divided according to each owner’s interest. The civil action must be filed in the superior court of the county where the property is located. The filing must include details about the property, its estimated value, and the ownership interests of all parties involved. Then at the request of one or more of the parties to the action, the court will appoint a real estate broker as the Special Commissioner to oversee the sale of the property. A.R.S. § 12-1211.
Per Arizona’s partition statute, “[a]n action to determine and quiet title to real property may be brought by anyone having or claiming an interest therein, whether in or out of possession, against any person or the state when such person or the state claims an estate or interest in the real property which is adverse to the party bringing the action.” A.R.S. §12-1101.
Importantly, the joint owner wishing to sell the property can compel the other owner or owners to sell the property. A.R.S. §12-1211. Arizona cases hold that the right of partition is an incident of common ownership and is specifically authorized by statute. McCready v. McCready, 168 Ariz. 1, 3, 810 P.2d 624, 626 (App. 1991) (citing A.R.S. § 12-1211; Lawson v. Ridgeway, 72 Ariz. 253, 265, 233 P.2d 459, 467 (1951)).
“[P]artition is a statutory procedure and, absent an agreement between the parties to voluntarily divide the property, any remedy must comply with the statutory scheme.” Cohen v. Frey, 215 Ariz. 62, 65 ¶ 6, 157 P.3d 482, 485 (App. 2007). Arizona partition statutes authorize the Special Commissioner to make a report to the court either dividing the subject property equitably, A.R.S. § 12-1216, or, if such a division is not possible, recommending sale of the property. A.R.S. 12-1218(A).
Per the partition statutes and well settled legal precedent, if one or more of the joint property owners wish to sell the property, the property is going to get sold, whether the other owner (or owners) like it or not. Next month’s article will examine how the sales proceeds will be distributed to the joint owners, and under what circumstances a joint owner may be reimbursed for contributions toward the property.
If you or someone you know has questions about a partition issue or any other real estate issue, please contact Provident Law® to schedule a meeting with Mr. Charles or one of the other experienced real estate attorneys at the firm.
Christopher J. Charles is the Founder and Managing Partner of Provident Law ®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS ® (the “AAR”). Mr. Charles recently authored the Arizona Real Estate Law Manual published by Lexis Nexis in late 2025. And Mr. Charles serves on the State Bar Real Estate Advisory Commission. In 2017, Mr. Charles obtained one of the Top Ten Civil Verdicts for his client in a real estate dispute. Mr. Charles holds the AV ® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions. He has taught continuing education classes at the Arizona School of Real Estate and Business, and he can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.