Understanding Partition Actions in Washington: A Guide for Co-Owners
When multiple people own real property together, disagreements about the property’s use or sale can create serious challenges. Washington law provides a legal remedy known as a partition action, which allows co-owners to divide their interests or force a sale when they cannot agree on how to manage shared property. This guide explains how partition actions work under Washington law and what property owners should know.
- What Is a Partition Action?
A partition action is a lawsuit that allows co-owners of real property—known as tenants in common—to divide the property or compel its sale. Under Washington Revised Code § 7.52.010, when several people hold property as tenants in common, any one or more of them can bring an action for partition according to their respective ownership interests. The statute also authorizes a court-ordered sale if dividing the property would cause “great prejudice” to the owners.
Importantly, partition is generally considered a matter of right. As Washington courts have recognized, when there are no complications regarding title, any tenant in common can demand partition. Probable inconvenience, hardship, or injury to the property are not adequate barriers to asserting this right.
- Recent Changes: The Uniform Partition of Heirs Property Act
In 2023, Washington enacted new protections for what is known as “heirs property” – property passed to family members through intestate succession or other means, often creating multiple co-owners across generations. For partition actions filed on or after July 23, 2023, courts must first determine whether the property qualifies as heirs property. If it does, the partition proceeds under the Uniform Partition of Heirs Property Act (chapter 7.54 RCW), which provides additional protection including buyout opportunities for co-owners before any sale can occur.
- Partition in Kind vs. Partition by Sale
Washington law recognizes two types of partition: partition in kind (physical division of the property) and partition by sale (selling the property and dividing the proceeds).
- The Preference for Partition in Kind
Under traditional partition law, there is a presumption that property held in common can be equitably divided, and the burden of proving otherwise rests on the party seeking a sale. For actions filed after July 23, 2023, involving heirs property, the court must order partition in kind unless it finds that such division would result in “great prejudice to the cotenants as a group.”
If the court orders partition in kind, it may require one or more co-owners to make equalization payments—known as “owelty”—so that each party receives value proportionate to their ownership share. Washington courts have held that when parcels cannot be physically divided equally, owelty corrects the inequality by requiring payment of one-half the difference in value between the parcels.
- When Courts Order a Sale Instead
If the court determines that the property cannot be divided without great prejudice to the owners, it may order the property sold instead. Washington courts define “great prejudice” as material pecuniary loss. The mere fact that division would reduce aggregate value is not enough; the loss must be substantial.
For example, in one case the court found that destroying a building of negligible value on a city lot worth between $20,000 and $37,000 did not constitute great prejudice, nor did a reduction in aggregate value of ten to thirty percent when a sale would result in even greater loss. By contrast, when partition in kind would reduce property value from $300,000 to $200,000—a loss of one-third—and no depressed market conditions existed to offset that loss, the court upheld an order of sale.
Courts evaluate whether partition in kind would result in each co-owner’s share being materially less valuable than their proportionate share of the proceeds from selling the property as a whole. Practical considerations also matter: when an entire building covers the property and a mortgage encumbers the whole, courts have approved sales rather than impractical physical divisions.
- Factors Courts Consider for Heirs Property
For partition actions filed after July 23, 2023, involving heirs property, Washington law requires courts to consider additional factors when determining whether partition in kind would cause great prejudice, including:
- Whether the property can practicably be divided among co-owners
- Whether partition would reduce aggregate fair market value materially compared to selling as a whole
- The collective duration of ownership by a cotenant and their relatives
- Sentimental attachment, including ancestral or special value
- Lawful uses being made of the property and potential harm from discontinuing those uses
- Each co-owner’s contributions to property taxes, insurance, maintenance, and improvements
- The Partition Process
- Filing the Action
A partition action begins with a complaint that must specifically set forth the interests of all persons in the property. If any parties or their ownership shares are unknown, uncertain, or contingent, the complaint must state that fact.
The court must ascertain the rights of all parties—plaintiffs and defendants—and when a defendant fails to answer or when a sale is necessary, the title must be proven to the court’s satisfaction before a partition or sale decree is issued.
- Court-Ordered Partition in Kind
If the court orders partition in kind under traditional partition law, it appoints three referees to execute the division. The referees divide the property and allot portions to each party according to their ownership rights, taking into account both quality and quantity. They may employ a surveyor to assist in designating shares by proper landmarks.
The referees then report back to the court, describing the property divided and each party’s allocated share. Importantly, even after an initial decree of partition in kind, if the referees report that the property cannot actually be divided without great prejudice, the court may reconsider and instead order a sale.
- Court-Ordered Sale
When the court orders a sale, it appoints one or more referees to conduct the sale. The proceeds are then distributed among the co-owners according to their ownership interests.
For heirs property partitions filed after July 23, 2023, co-owners have a statutory buyout right before any sale occurs. Those who wish to purchase the interests of co-owners who requested partition by sale may do so at a price determined by the court.
- Rights and Obligations of Co-Owners Before Partition
While co-owners remain in a tenancy in common, each has an equal right to possess all parts of the property at all times, regardless of their ownership percentage.
- Rent and Occupancy
Generally, a co-owner who occupies the property does not owe rent to non-occupying co-owners, absent an agreement to pay rent or an ouster (active exclusion of the other co-owners). Washington courts have held that requiring an occupying co-owner to compensate non-occupying co-owners for a possession right they already have would be contrary to the fundamental attributes of co-ownership.
After ouster, however, the occupying co-owner owes rent to those who have been excluded.
- Expenses and Improvements
When co-owners contribute unequally to property taxes, insurance, or other expenses, those contributions affect the final accounting in a partition action. If one co-owner makes payments to preserve the property while another abandons their obligations, the contributing owner is entitled to offset those necessary expenditures, and the non-contributing owner’s equity is limited to their investment at the time of abandonment.
- Costs and Attorney Fees
The costs of partition—including referee fees, other disbursements, and reasonable attorney fees fixed by the court—are typically apportioned among the parties in proportion to their ownership interests. When ordered sold, costs also include an abstract of title.
Under the common benefit rule followed in Washington, attorney fees may be allowed as costs where all parties have actually benefited from the proceeding, at least when the proceedings have been amicable or friendly. However, when litigation arises between only some parties, the court may require those parties alone to bear the expense of that specific dispute.
- Conclusion
Partition actions provide an essential remedy when co-owners cannot agree on the management or disposition of shared property. Washington law strongly favors physical division of property when practical but recognizes that sale may be necessary when division would cause material economic harm. The 2023 amendments provide additional protections for heirs property, ensuring that families who have held property across generations receive fair treatment and opportunities to preserve their ownership.
Co-owners facing disputes should understand their rights, the standards courts apply, and the procedural options available. While partition is generally a matter of right, the specific outcome—division or sale, allocation of costs, equalization payments—depends heavily on the particular facts and the property’s characteristics.
The lawyers at Beresford Booth have extensive experience dealing with real estate matters. Contact us at info@beresfordlaw.com or by phone at (425) 776-4100. to see how we can help you.