Under the modern common-law approach to partition, which of the following best describes the court's default preference when cotenants cannot agree on how to divide jointly owned real property?
The court must order a partition by sale unless all cotenants consent to a physical division of the property.
The court may refuse to partition if doing so benefits the majority of cotenants, even if a minority requests partition.
Whatever form of partition the plaintiff demands must be granted, regardless of any resulting economic loss to the other cotenants.
The court will order a physical division (partition in kind) unless doing so is impracticable or would substantially prejudice the owners, in which case a partition by sale may be ordered.
Courts favor a physical division of the land (partition in kind) because it allows each cotenant to keep an ownership interest in real property. A court will depart from this preference and order a partition by sale only if a physical division is impracticable or would substantially prejudice the owners-most commonly because the aggregate value of the subdivided parcels would be materially less than the value of the property as a single parcel or because the property cannot be equitably or feasibly divided. The other options misstate the rule: a sale is not required absent unanimity, courts cannot simply refuse partition to protect a majority, and a plaintiff does not have an absolute right to the form of partition requested regardless of economic consequences.
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What are cotenants in property law?
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What does partition mean in property law?
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How do courts determine whether a physical partition will diminish property value?