THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 125 (part one) • Partition of Real Estate

Many of us remember the Peel Commission that recommended the partition of Palestine into two states along with other recommendations. This was followed by the United Nations Special Committee on Palestine that recommended partition and some other recommendations. What partition meant then and always meant, was to divide a tract of real estate between two or more parties. Of course the Peel Commission and the United Nations Committee were legally wrong in that they took a tract that belonged to one party, us, and divided it. In this lesson and the next lesson, IYH, we shall see how partition works in a legal setting, that of halachah. 

This subject is more, (or was more) than academic, to many people I know. In fact we had several cases in our Beth Din that involved such problems. In one of them, two couples who were friends at the time, (with my intervention they are still friends) jointly bought an apartment in Ashkelon. This was not a time sharing apartment. They were the outright owners and thought that they would between themselves work out who would have the use of the apartment for which periods of time. They also invested some money in furnishing the apartment. After but a few months one couple, (we will call them the “first couple”) complained that not only were they not getting an equal amount of time in “the good times” that is when children were off from school, but the children of the second couple were destroying the furniture and generally causing damage to the apartment. Both couples agreed that they wanted to terminate their arrangement. But how? 

Another case involved two sisters who jointly inherited a pardes (orange orchard) from their father that he owned for many years. The husbands of the sisters, each husband knew how to turn this small orchard into a million dollar corporation. Each husband thought that the ideas of the other sister's’ husband were ill-conceived, to say the least. Since the husbands did not get along, joint ownership was not a very good option. 

I am sure that many of the readers have been involved or have friends or relatives who have been involved in similar circumstances. 

Thus we will commence with the assumption that Reuven and Shimon own a parcel of land as joint tenants. That is, each owns a one-half interest in the parcel, that we shall designate as Parcel A. It does not have to be equal ownership. Generally the facts can fit a situation where for example one owner owned 90% and the other owner owned 10%. 

How they came to own it as joint tenants is not important. They may have inherited from their father. They may have received it as a gift. They may have bought it as joint owners and have no agreement defining their rights, liabilities and responsibilities, one to the other in Parcel A. By agreement they can usually determine their rights in Parcel A. By agreement they may divide the parcel and terminate their joint ownership. However, there may be times where one of the joint owners, say Reuven, wants to terminate the joint ownership. He want to exclusively own part of the parcel and Shimon will exclusively own the other part of Parcel A. (There may a be a case brought before Beth Din even if they both agree to the idea of dividing Parcel A, but cannot agree how to divide it.) What are the rights of the parties? If they don’t agree, how should it be partitioned?

Reuven’s right to go to Beth Din to demand partition is not always available to him. First of all it may depend upon the size of the parcel. If the parcel is too small, Beth Din will not order partition. (The required size is discussed later on.) Of course, Reuven and Shimon may, by mutual agreement, divide their jointly owned property whether or not it contains the requisite area to demand partition. 

Also, Reuven cannot demand partition if the parties have agreed with a kinyan that they will not demand partition. To refresh recollections, a kinyan is an act whereby a party obligates himself to perform an act or to refrain from performing an act. The person obligating himself to do or not to do an act takes (temporary) possession of a handkerchief or almost any other item of personal property tendered to him by the other party or any other person on behalf of the other party. In this case Shimon would hand over to Reuven, Shimon's handkerchief in return for which Reuven would undertake not to ever demand partition. Together with the handkerchief (which Reuven usually gives back to Shimon) there may be a money or other consideration given to Reuven. In this case the undertaking may have been reciprocal and Reuven would have tendered to Shimon, Reuven’s handkerchief and Shimon undertook not to ever demand partition. Most of us have seen such an undertaking at the wedding when the groom lifts up the handkerchief, very often belonging to the rabbi, and agrees to be bound by the terms of the kethubah. 

Also Reuven cannot demand partition if he purchased his half-interest (or any interest) from Shimon and agreed at the time of purchase that he would not demand partition. 

Also, Reuven may not demand partition if the land or personal property jointly owned by them is being held for business in which they are partners unless their partnership agreement, or lacking such agreement, the laws of partnership, so provide. 

As stated above, Reuven can demand partition of the land only if it has certain minimum dimensions. The ultimate test is that if the land is partitioned the part of the land that Reuven and Shimon each receives will be recognized as distinctive, separate, usable pieces of land.

Even if the dimensions of the land are not large enough for Reuven to demand and enforce partition, he may do so if the use of the land has been effectively divided between the parties, such as each using a different specific half of the land. They may have commenced using different halves by express consent or by usage, implying consent or they may have purchased the land with this in mind, or they so agreed by kinyan. They may have to partition the land so that each may build a wall to prevent the tort of overviewing. (See Lesson #111, TT 494.) Even in situations where there is no overviewing harm Reuven can demand partition and put up a fence between the divided parts of the land.

There is an opinion that even if Shimon's part of the land after division is not itself equal to the amount necessary to enable Reuven to require partition, if Shimon has other land contiguous to the part of the land he will receive on partition, then if Shimon does not consent to Reuven's demand for partition, Beth Din will compel Shimon do so.

To be continued, IYH, in the next lesson.

The subject matter of this lesson is more fully discussed in Vol. V, Ch.171 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 

Questions to quint@inter.net.il