The court at any time may make such orders as it may deem necessary to promote the ends of justice to completely adjudicate every question and controversy concerning the title, rights, and interest of all persons whether in being or not, known or unknown, and may direct the payment and discharge of liens and have the property sold free from any lien or may apportion any lien among the persons to whom the partition is made.
Source: L. 49: p. 545, § 10. CSA: C. 122, § 33. CRS 53: § 103-1-10. C.R.S. 1963: § 103-1-10.
ANNOTATION
Court's function is to sever unity of possession. A court's function when deciding a partition action is not to create new interests in property held by tenants in common, but is merely to sever the unity of possession owned by the tenants. Martinez v. Martinez, 638 P.2d 834 (Colo. App. 1981); McNamara v. Mossman, 230 P.3d 1286 (Colo. App. 2010).
Court to assign equal shares to cotenants. In order to allocate to each cotenant his share of the property's enhanced value, the court should begin by assigning each cotenant one-half of the property's stipulated value, and then make adjustments as required by the accounting. Martinez v. Martinez, 638 P.2d 834 (Colo. App. 1981).
When partitioning property held by tenants in common, the court should assign one-half of interest in the property to each tenant, and not grant a greater share of the property to either. Keith v. El-Kareh, 729 P.2d 377 (Colo. App. 1986).
Then offset amounts for contribution. Once the property has been divided, the court may then, to reach an equitable result, compute the contribution of each tenant and offset any amount owing against the one-half share held by each tenant. Martinez v. Martinez, 638 P.2d 834 (Colo. App. 1981); Keith v. El-Kareh, 729 P.2d 377 (Colo. App. 1986).
Where expenditures have been made by a cotenant improving jointly owned realty, that cotenant will be allowed the amount by which the improvements enhance the value of the property but not the cost thereof or the original amount expended in making the improvement. Martinez v. Martinez, 638 P.2d 834 (Colo. App. 1981).
Trial court abused its discretion in granting plaintiffs an option to purchase defendant's interest in the subject property. This section does not grant a trial court carte blanche to provide partition remedies, particularly where that remedy would contravene the provisions of § 38-28-107. Here, the court found that the parcel could be divided equitably. Neither party occupied the parcel as a primary residence. Furthermore, the trial court granted the plaintiffs, who originally sought to sell their interest in the parcel, an option to buy defendant's interest, while defendant sought to retain his interest in the property in kind. Thus, the trial court abused its discretion in granting the option to the plaintiffs. Young Props. v. Wolflick, 87 P.3d 235 (Colo. App. 2003).
Applied in Harrod v. Harrod, 34 Colo. App. 172, 526 P.2d 666 (1974).
MANUFACTURED HOMES