If you co-own one or more parcels of real estate in Pennsylvania with other people who are not your spouse, and you’re ready to part ways with them, the law does provide a method for splitting up your property and recovering your investment. This method is called a legal claim for “partition.”
A partition action, if successful, results in some form of division of the property, which can take the form of:
Partition claims are often brought by people who inherit a partial interest in a property, people who have purchased a property as an investment with others (but did not create a separate legal entity in the process of doing so), and people who purchased property together in the context of a personal relationship or a family relationship other than marriage. However, partition claims do not require any specific form of relationship among the co-owners, and they can be brought by anyone who owns a property jointly with someone else who is not his or her spouse.
In a partition claim, a court determines whether the co-owners of a property can divide that property and, if so, what each person is entitled to receive. A claimant for partition starts the action by filing a complaint with the court in the county in which the property is located. The complaint identifies the property at issue, the claimant, the nature of his or her ownership interest in that property, and all the other people who also have interests in the same property. Presuming that everything is in order procedurally, the court then generally enters an order that directs the property to be divided among its co-owners in some way.
Once the partition order is entered, the court directs the parties or their lawyers to participate in a mandatory preliminary conference to consider how the property should be partitioned, whether the parties can agree on a plan to partition the property, and whether the court should appoint an experienced person called a “master” to supervise the partition. Most cases that do not settle at this stage have a master appointed.
Once appointed, a master has many powers, including the ability to investigate the facts relating to the property, conduct hearings to resolve any disputed facts, and hire experts like title agents and real estate appraisers. The master’s fees are paid by all the parties to the action, as are the fees of any experts that are hired by the master. Those fees can be paid while the litigation is ongoing, at the end of the case, or some combination of the two.
The master is obligated to prepare a report to the Court that includes his or her recommendations for how to partition the property, and what each party should receive from the division of the property. The law obligates the court (or the master, if appointed) to give preference to physically dividing the property, but that if that is not possible, then enabling a transaction among the co‑owners, if possible, such as a buy‑out. If the co-owners are unable to divide the property among themselves, however, then the property can be sold to third parties, whether at a public auction or through a private sale.
Because a partition proceeding is equitable in nature, the court (and the master, if any) can consider many issues of fairness when trying to determine the value of each person’s interest in the property, including, among other things:
Eventually, once the necessary issues are addressed by the master or by the court, a court order is entered that directs how the partition of the property is to be completed. There are several opportunities for the parties to object to the process, both before that order is entered and after. Because partition is a court-ordered proceeding, the court’s approval is required before any transactions are finalized.
Partition of real estate is a specialized proceeding that involves many considerations. We strongly recommend that any person who is involved in a partition proceeding, or who is thinking about starting a partition proceeding, consult with a well-qualified attorney who is experienced in litigating these kinds of real estate disputes.
We often receive inquiries from business owners who have been sued in Pennsylvania or are thinking about filing a lawsuit in Pennsylvania—asking whether it is legally permissible for an owner or officer of the business to represent the business in court without a lawyer. The answer to this question depends on (1) the type of business that you have, and (2) the court in which your business is being sued.
If your business is a sole proprietorship—that is, if your business is simply you, operating under your own name (for example, a house painting business where the checks are paid to “Mary Smith”), or if your business is you, operating under a legally registered business name (for example, a similar house painting business, but where the checks are paid to “Smith Painting,” the name under which Mary Smith legally does business)—then the true party before the court is you as an individual. Because there is no separate legal entity involved, you can legally represent yourself in court without a lawyer, even though you are being sued about a matter involving your business.
If your business is a general partnership, a limited partnership (“LP”), or a limited liability partnership (“LLP”), a general partner who is authorized to conduct the business of your partnership may legally represent the partnership without a lawyer, but the limited partners may not.
If your business is an entity with a separate legal existence, such as a corporation or a limited liability company (“LLC”) registered to do business in Pennsylvania, then the business must, as a matter of law, be represented in court by an attorney unless a specific exception applies. In a civil case, any filing made on behalf of a corporation or LLC by someone other than a lawyer is a legal nullity that can and must be disregarded by the court because the court lacks jurisdiction to consider any claims or defenses raised by a non-attorney.
There are three common exceptions to the rule that a business that is a separate legal entity must be represented in court by a lawyer.
First, certain minor courts in Pennsylvania that are designed to adjudicate small civil claims, such as the Magisterial District Courts and the Philadelphia Municipal Court, have rules that permit businesses to be represented by non‑lawyers. Those courts may have procedural rules that require the business to provide specific written authorization for the non-lawyer representative to appear for the business in court.
Second, a non-attorney may legally represent a business in certain administrative proceedings, such as a hearing before a referee of Pennsylvania’s unemployment compensation board.
Third, an exception exists for a rare and complex type of case known as a stockholder derivative action.
Of course, the question of whether it is legally possible for your business to be represented by a non‑lawyer is very separate and different from the question of whether it is wise, or a good idea, to allow your business to be represented in court without a lawyer. We strongly recommend that any business that is involved in a court proceeding, or any business that is thinking about starting a court proceeding, consult with a well-qualified attorney who is experienced in litigating business disputes. What you don’t know about court procedures and the intricacies of the law can, and often will, hurt your business.
