LAYING DOWN THE LAW
with
Christopher J. Charles, Esq.
Provident Law®
Partition Actions (part II of II)
This article continues an overview of real estate partition actions in Arizona. (Partition Actions I of III was published in the Arizona Real Estate Journal in November 2025.) As explained in Part I, the Arizona Legislature has provided the courts and property owners with powerful tools to efficiently sell real property that is jointly owned by two or more people. Thanks to the partition statutes codified at A.R.S. § 12-1211, if joint property owners cannot reach an agreement as to whether to sell, when to sell, what price to sell for, or what broker to list the property for sale with, the court can swiftly appoint a licensed real estate broker to help make those important decisions for the stalemated parties. This article focuses on the court’s authority per the statute to equitably apportion the sales proceeds to the parties following the inevitable sale.
Because real estate can rarely be physically divided, the court typically orders the property be sold and the proceeds divided equitably among the owners (as opposed to partition by kind where the court orders the property to be physically divided). Reaching an agreement regarding the co-owners’ respective interests in the property is generally the sticking point. In 2018, in an unpublished opinion, the Arizona Court of Appeals addressed this issue. In Egizii v. Egizii, Ariz. App. 2018 Unpub. LEXIS 546, an unmarried couple purchased a residential property and held title as tenants in common for approximately 30 years. They acquired the property at a trustee sale and took title subject to an existing mortgage. The male co-owner later obtained a second mortgage for $100,000 in his name alone. Both contributed to various expenses and improvements to the property.
The couple subsequently separated and disagreed about what to do with the property. As a result, one of the co-owners filed a partition action. After considering the evidence, the trial court ordered that the property be sold and that the proceeds be applied first to closing costs and to pay off the existing mortgage. Then the male co-owner received the following credits: $19,000 for payments he made for homeowner’s insurance; $71,000 for property taxes; and $183,000 for the down payment he contributed at the time of purchase.
The remaining balance was split between the two owners. The male co-owner appealed because he was not reimbursed for the mortgage payments he made. In deciding the appeal, the Court of Appeals identified two important considerations for partition actions. First, when one joint tenant expends money that benefits the other joint tenants, the paying joint tenant is entitled to reimbursement from the other joint tenants. This is known as the “right to contribution.”[1] In this case, the trial court’s calculations did not count the existing mortgage as a common debt and therefore did not order any contribution from the female co-owner.
On appeal, the Appellate Court reversed this decision and confirmed the above rule: “[w]hen one joint tenant expends sums to benefit the other joint tenant, … the paying joint tenant is entitled to reimbursement.” [2] Thus, the court held that the male co-owner should have been reimbursed for the mortgage payments he made.
The second consideration stems from the male co-owner’s separate claim that he was entitled to a contribution of $72,000 regarding certain improvements to the property for which the other co-owner did not pay. In rejecting this claim, the Court of Appeals affirmed that the right to contribution for improvements does not depend on the actual amount expended, but upon the value it imparts to all the joint owners. Thus, the male co-owner was entitled to a contribution award for improvements based solely on the resulting increase in value, and not the actual expenditures.[3] In this case, the trial court found no increased value from the improvements based on expert witness testimony that the property was best valued as a “tear down.”
Real estate partition actions can be complicated and come with many pitfalls for the unwary participant. But with wise counsel, even the most difficult case can be carefully navigated to its equitable conclusion (and payout). If you or someone you know is facing an issue concerning joint ownership of real property, contact Provident Law® today to schedule a consultation with Christopher Charles or one of the other experienced real estate attorneys at 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”).
- Recently authored the Arizona Real Estate Law Manual published by Lexis Nexis in late 2025.
- 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.
- 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.
- 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.
He can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.
[1] Egizii v. Egizii, ¶10, Ariz. App. 2018, Unpub. LEXIS 546.
[2] Egizii v. Egizii, ¶10, Ariz. App. 2018, Unpub. LEXIS 546, (citing Bowart v. Bowart, 128 Ariz. 331, 337 (App. 1980) ; wife was entitled to reimbursement for using her separate funds to pay the spouses’ joint-tenancy obligations, including mortgage payments and taxes).
[3] Egizii v. Egizii, ¶10, Ariz. App. 2018, Unpub. LEXIS 546 (citing In re Marriage of Berger, 140 Ariz. 156, 163 (App. 1983)).