Colorado § 38-28-101 - Action - who may maintain.

§ 38-28-101. Action - who may maintain.

Actions for the division and partition of real or personal property or interest therein may be maintained by any person having an interest in such property.

Source: L. 49: p. 544, § 1. CSA: C. 122, § 24. CRS 53: § 103-1-1. C.R.S. 1963: § 103-1-1.

ANNOTATION

Law reviews. For article, "Joint Tenancy in Colorado", see 26 Dicta 313 (1949).

There is nothing inalienable about the right of partition; and a tenant in common may contract it away. Twin Lakes Reservoir & Canal Co. v. Bond, 157 Colo. 10, 401 P.2d 586 (1965). See also McIntire v. Midwest Theatres Co., 88 Colo. 559, 298 P. 959 (1931).

Partition by tenants in common and joint tenants same. There is no difference in a partition action as to property held by tenants in common and property held by joint tenants. Merth v. Hobart, 129 Colo. 546, 272 P.2d 273 (1954).

Partition not imposable by marriage partner following divorce. Partition action may not be imposed by one of the marriage partners upon the other following divorce. Harrod v. Harrod, 34 Colo. App. 172, 526 P.2d 666 (1974).

Partition of marital property after the entry of the final dissolution decree is permissible, but the partition order must not conflict with explicit provisions of the decree. In such cases, the trial court is not required to treat the partition as a disposition of marital property but instead may consider the parties' equitable arguments and enter orders to partition the leaseholds equitably to promote the ends of justice. Wilson v. Prentiss, 140 P.3d 288 (Colo. App. 2006).

The court's function in a partition action is not to create new interests in property owned by tenants in common, but is merely to sever their unity of possession. Keith v. El-Kareh, 729 P.2d 377 (Colo. App. 1986).

Court cannot issue order directing sale of property under partition statute on grounds of "waste" or through its equitable powers where the two parties hold separate concurrent estates and have no interest in common. Fed. Deposit Ins. Corp. v. Mars, 821 P.2d 826 (Colo. App. 1991).

This section does not abrogate the common law rule that a life estate interest cannot be partitioned from a successive, non-concurrent remainder interest in the same property. Therefore, as a matter of law, a mother could not partition her life estate in a three-room addition to her daughter's property from the daughter's remainder interest in the addition. Beach v. Beach, 74 P.3d 1 (Colo. 2003).

Applied in First Nat'l Bank v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980); Martinez v. Martinez, 638 P.2d 834 (Colo. App. 1981); Fry & Co. v. District Court, 653 P.2d 1135 (Colo. 1982).