Like many legal issues, real estate partitions actions come with both pros and cons and a thorough risk assessment analysis should be undertaken with the help of experienced legal counsel before filing any complaint for partition. This article addresses some of those risks and completes the trilogy of this article series on partition actions. Thankfully, joint property owners have freedom and flexibility to carefully examine their legal options before making the important decision of whether to file a complaint for partition. This is due in part because there is no legal pressure to quickly file a partition action within any set amount of time because there is no statute of limitations for a joint owner of real property to bring a partition action.[1] But the right to partition can be waived by written or implied agreement based upon the facts and conduct of the parties. Ochinov. Ochino, 164 Ariz. 482, 793 P.2d 1149 (App. 1990).
Importantly, partition actions have many downsides and should be viewed by the joint owners as a measure of last resort only after all negotiation efforts have been exhausted. First, the partition statute does not include any provision for the recovery of attorneys fees.
PRACTICE POINTER: Although partition actions do not provide for recovery of attorneys fees, if a joint owner involved in a partition action disputes the opposing party’s alleged interest in the property, the joint owner can construct a basis for seeking recovery of their reasonable attorneys fees and costs by following the procedure set forth at A.R.S. 12-1103. More specifically, the joint owner can send the opposing party a quiet title demand letter contesting the opposing party’s alleged interest in the property, along with a proposed form of quit claim deed and request that the opposing party execute and return the signed and notarized quit claim deed within 20 days of the quiet title demand letter. Then after sending the demand letter and quit claim deed, if after 20 days the opposing party fails to sign and return the quit claim deed, the joint owner can assert a claim for quiet title and seek recovery of their reasonable attorneys fees and cost.[2]
In addition to the attorney fees issue, partition actions come with other fees and costs. First, if the parties cannot reach an agreement regarding the division of the property, the parties will incur customary closing costs that would be associated with any traditional real estate transaction, including real estate broker commissions, title and escrow fees, appraisal fee, inspection fee, recording fees, and of course each party will be responsible for bearing their own attorneys fees and costs.
Another important consideration is the impact a civil lawsuit may have on any relationship that exists between the joint owners. Litigation usually places a strain on any relationship between the parties, but this is particularly true with partition actions because they usually involve parties with special relationships, such as family members or romantic partners.
Here is an example of the severe impact a lawsuit can have on the opposing party:
Years ago, the Warren family was one of the most prominent families in Boston. Mr. Warren died and left the family business in a trust for the benefit of his widow and five children. Sam, the oldest son, had the most experience in business. The family agreed to place him in charge of the family business and the family trust. Ned, a younger brother, moved to England and lived off his trust income.
Initially, the business was profitable and the family members lived well, but after several years there were difficulties. Ned began to suspect Sam of bad faith, and he hired one of Boston’s best lawyers to consider the matter. Ned’s lawyer filed a complaint in equity against Sam, charging him with breach of trust.
On the same day Ned’s lawyer filed the complaint, Ned wrote Sam a letter in which he stated: The phrases are such as in a legal document I have felt obliged to sign, but are very far from representing my feelings toward you….Let us try to agree; it would be much pleasanter.
Your affectionate brother,
E.P. Warren
As might be expected, the filing of the complaint had a greater impact on Sam than the letter. Sam was deeply offended by the complaint, and the brothers went to court. During the trial, in the midst of several days of rigorous cross-examination, Sam committed suicide.[3]
A further downside to partition actions is the length of time for resolution. The average disposition of a partition action from start to finish in the Arizona superior court is about 12 months.
In sum, partition actions often serve as the best (and often the only) solution if the owners cannot agree on the disposition of the property. The takeaways for joint owners (or soon-to-be joint owners) to prevent disagreement down the road are the following:
- Confer with counsel before purchasing the property (or soon thereafter) and prepare a written agreement, such as a tenancy in common agreement, between the co-owners, including a buyout clause.
- Keep detailed records of all expenditures.
- Ensure that any expenses that equally benefit the co-owners are invoiced to all owners (or to the entity if the owners transfer title to a commonly owned entity such as a single-asset LLC).
If you or someone you has questions concerning a joint ownership in real property, contact Provident Law® to schedule a consultation with Christopher 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.
[2] A.R.S. 12-1211.
[3] Robert Cochran, The Servant Lawyer: Facing the Challenges of Christian Faith in Everyday Law Practice 125 – 126 (InterVarsity Press 2024).