Opinion Number

Dear Mr. Meredith:

You have requested an opinion from this Office regarding whether a conventional partition of land filed with the Caldwell Parish Clerk of Court's Office is valid if it does not include all of the co-owners of the subject property.

As a general matter, La.R.S. 13:4985, et seq. governs this issue and, specifically, La.R.S. 13:4985 provides as follows:

Where real property is partitioned, either in kind or by licitation, by either judicial or conventional partition the fact that one or more co-owners are not parties thereto shall not affect the validity of such partition as to the co-owners who are parties thereto or their heirs or assigns; provided that the rights of any co-owner not a party to such partition shall not be affected thereby and the interest of such co-owner in the property partitioned shall remain the same as if the property had not been partitioned.

Without the partition document to review, and simply applying the statute cited above to the facts that you have provided in conversation and in your letter, the partition is valid as to the co-owners who are parties, if the rights and interests of any co-owner who is not a party to the subject partition are not affected by the partition.

The section of the statute that states, "provided that the rights of any co-owner not a party to such partition shall not be affected thereby and the interest of such co-owner in the property partitioned shall remain the same as if the property had not been partitioned," is a resolutory condition, ¹ the occurrence of which will make the partition invalid as to all co-owners.

This office cannot make a factual determination regarding the interests and rights of the non-party co-owners. In order to determine whether the interests and rights of the non-party co-owners to the partition are the same as if the property has not been partitioned, either the co-owners would have to acknowledge that fact, or an action would have to be brought in a court of competent jurisdiction to make that factual determination. There are no reported cases in this State involving a conventional partition under La.R.S. 13:4985.

Unless and until the partition is determined to be invalid in a court of competent jurisdiction, it is a valid partition as between the parties.

We trust that this analysis adequately responds to your request. Should you have any further questions or concerns, please do not hesitate to contact this Office.

Sincerely,

JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL

BY:__________________________ Irys L.V. Allgood Assistant Attorney General

JDC/ILVA/jv

¹ See La.C.C. Art. 1767 . . . "If the obligation may be immediately enforced but will come to an end when the uncertain event occurs, the condition is resolutory."