Navigating Partition Litigation: a brief overview of partition actions in Washington

Whenever real property is co-owned by multiple individuals, disputes are bound to happen. The owners may disagree about how to develop or maintain the property, whether to sell the property, and so on. The rights of each individual and how disputes among them may be settled depend greatly on the kind of tenancy at play, whether it be as joint tenants with right of survivorship[1] or as tenants in common.[2]  Even with the help of an experienced attorney, what to do when disputes become irreconcilable can quickly become complex and expensive so it’s important to know what options are available to you.

Under Washington law, one of the primary tools available to co-tenants who are unable to resolve a dispute amongst themselves is a partition action,[3] which may occur in one of two ways:

• Partition in Kind
• Partition by Sale[4]

A partition in kind will only occur if the property at issue is large enough to be divided amongst the co-tenants and still meet the applicable local zoning requirements. If the property is too small and cannot be divided, this renders a partition in kind impossible and a court may order a partition by sale.[5]

A partition by sale means that the disputed property is sold by public auction and the co-tenants are paid out only after the sale. Due to the likelihood that an auction will not maximize profits for the co-tenants, it is highly encouraged to consult with an attorney before and during the partition process.

With or without an attorney, however, any co-tenant may force a sale of the property by filing a complaint for a partition with the court.[6] Once a complaint is filed, a referee is appointed to oversee the partition process and what follows mirrors other civil litigation proceedings: notice is given to the other co-tenants, a trial is conducted to address sale of the property, and the court issues an order.[7] The court will determine the share of each co-tenant based on the respective rights of the parties[8] and will look at the particular facts of each case to fashion equitable remedies.[9] While there are no specific rules for valuing each co-tenant’s interest, facts a court may take into account include:

• Who paid the down payment?
• Who paid the mortgage?
• Did any of the co-tenants make substantial improvements/renovations to the property?
• Who was responsible for upkeep of the property?[10]

It’s important that co-tenants know that even when a partition action is uncontested, litigation becomes expensive fast. Due to the potentially high cost and complexity of such actions, we recommended that you consult with an attorney if a dispute arises. If you own property in Whatcom, Skagit, Island, or San Juan county and want to discuss your options both prior to and including a partition action, one of our experienced estate planning or real estate attorneys would be happy to help walk you through the process.

[1] RCW 64.28 et seq.

[2] For a more in-depth discussion of types of tenancies in Washington, please see my colleague Catherine Moore’s blog titled “Tenancy Language in Deeds” (March 15, 2019) https://www.carmichaelclark.com/news/real-estate/tenancy-language-in-deeds/.

[3] RCW 7.52 et seq.

[4] RCW 7.52.080.

[5] Id.

[6] RCW 7.52.010 – .020.

[7] RCW 7.52.050 – .100.

[8] RCW 7.52.090.

[9] Kelsey v. Kelsey, 179 Wn.App. 360 (2014).

[10] This represents a non-exhaustive list of facts commonly considered by courts.