Concurrent Estate - Destruction of Tenancy in Common

Destruction of Tenancy in Common

Where any party to a tenancy in common wishes to terminate (usually termed "destroy") the joint interest, he or she may obtain a partition of the property. This is a division of the land into distinctly owned lots, if such division is legally permitted under zoning and other local land use restrictions. Where such division is not permitted, a forced sale of the property is the only alternative, followed by a division of the proceeds.

If the parties are unable to agree to a partition, any or all of them may seek the ruling of a court to determine how the land should be divided - physically division between the joint owners (partition in kind), leaving each with ownership of a portion of the property representing their share. Courts may also order a partition by sale in which the property is sold and the proceeds are distributed to the owners. Where local law does not permit physical division, the court must order a partition by sale.

Each co-owner is entitled to partition as a matter of right, meaning that the court will order a partition at the request of any of the co-owners. The only exception to this general rule is where the co-owners have agreed, either expressly or impliedly, to waive the right of partition. The right may be waived either permanently, for a specific period of time, or under certain conditions. The court, however, will likely not enforce this waiver because it is a restraint on the alienability of property.