Legal Question in Real Estate Law in Massachusetts

Re: About Petition to Partition - Can I ask for physical division (2 family)?

It sounds as though you would like to turn your two-family home into two separate condominiums.

If you will both agree to 'condo-ize' the building, it can be done less expensively and less painfully than a contested Petition to Partition. However, you will still need to decide on what credits you are entitled to, if any.

If you have always occupied the 2d floor and your co-owner has always occupied the 1st floor, then it is likely both parties would simply agree to stay put. You do not have any legal "priority" to any portion of the home, however.

You can continue to rent out your unit during the Partition process, but you should be aware that in the absence of an agreement to the contrary, co-owners are equally entitled to rental income generated by the property.

Re: About Petition to Partition - Can I ask for physical division (2 family)?

The short answer, is the court will divide the property so that it is divided equally in value. If the second floor is worth more than the first, there may be an adjustment or payment that needs to be paid by the couple who gets the unit of greater value.

A Petition for Partition is litigation and therefore you are asking a question that cannot be simply answered. It can cost as little as $5,000 and as much as $25,000 or more depending upon the attitude and behavior of the other side.

If an accommodation cannot be made so you each take one unit then the property will be sold.

It would be cheaper and better to form a condo association and condo the two units. This would make it so you each would have responsibilities and payment obligations for insurance and common area maintenance. Two unit condos can be difficult to run as well.

I have outlined your options and if you have additional questions please feel free to call me.