dissenting.
¶ 44 Although the Majority correctly states that the part-performance exception to the statute of frauds requires acts “unequivocally referable” to the oral contract, my colleagues misapply that principle by failing to consider whether Schepp Partnership’s alleged acts of part performance standing alone are unequivocally referable to the oral partition agreement rather than as colored by Hal’s purported promises. For this reason, I respectfully dissent.
¶45 In assessing whether an act is “unequivocally referable” to an oral agreement, the court must examine only the act itself to make this determination, disregarding any explanation provided by the party attempting to enforce the agreement. As Judge Cardozo stated:
‘An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance.’ What is done must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done.
Bums, 135 N.E. at 273 (citation omitted) (emphasis added); see also 73 Am.Jur.2d Statute of Frauds § 321 (May 2007) (to same effect). This court agreed with this reasoning in Gene Hancock Construction, concluding that acts of part performance must be “exclusively referable” to the oral agreement. 20 Ariz.App. at 125, 510 P.2d at 755.6
¶46 The “act” cited by the Majority as Schepp Partnership’s part performance of the oral partition agreement is not an affirmative action, but forbearance from action, making application of the part-performance exception improbable. See Williams v. Heller Bros. Realty, 229 Va. 55, 326 S.E.2d 661, 662 (1985) (“Obviously, forbearance to act is less probative of an antecedent agreement than affirmative action.”); Beall v. Beall, 291 Md. 224, 434 A.2d 1015, 1019 (1981) (“If the part performance asserted consists wholly of forbearance to act, the fact is less likely to be evidential in character than when it consists of affirmative action.” (citing 2 Corbin on Contracts § 430, at 473-74)). Specifically, Hal removed trees from lots 17 and 18 and *285Schepp Partnership did not intervene. Supra ¶40. This event is not “unequivocally referable” to the partition agreement because it is also explained by the parties’ co-tenancy relationship. Said differently, Schepp Partnership’s acts were not inconsistent with the lack of a partition agreement and were therefore not “unequivocally referable” to such an agreement. Payne, 639 S.E.2d at 530 (“[T]o remove the contract from the operation of the Statute of Frauds, ‘the part performance shown must he consistent with the presence of a contract and inconsistent with the lack of a contract.’ ” (quoting Francis v. Thomas, 129 Tex. 579, 106 S.W.2d 257, 260 (App.1937))).
¶ 47 As a cotenant in Lots 17 and 18, Hal had the right to use and enjoy the property as if he were the sole owner, provided he did not prejudice Schepp Partnership’s use and enjoyment of the lots. Jackson v. Low Cost Auto Parts, Inc., 25 Ariz.App. 515, 516, 544 P.2d 1116, 1117 (1976); 20 Am.Jur.2d Cotenancy and Joint Ownership § 41 (May 2007) (“Any cotenant of real property generally has a right to enter upon the common estate and to take possession of the whole.”). Hal’s removal of the trees, Thomas’ lack of objection, and Schepp Partnership’s subsequent payment of its proportionate share of the removal can be explained as the act of one eotenant improving the property with contribution by the other cotenant. 86 C. J.S. Tenancy in Common § 92 (June 2007) (providing one cotenant may make improvements and compel consenting cotenant to pay share). In other words, the actions of Hal and Schepp Partnership are reasonably explained by the parties’ relationship as cotenants in the property. The inquiry should end there.
¶48 The Majority, however, recasts the tree-removal episode as part performance of the oral agreement by focusing on Thomas’ explanation for not objecting to Hal’s acts.7 Supra ¶40. According to the Majority, no other explanation for Thomas’ change-of-heart exists except his performance of the agreement, particularly as the brothers believed the tree removal would devalue the lots. Id. But by considering Schepp Partnership’s explanation for Thomas’ acquiescence rather than the act itself, the Majority incorrectly allows Hal’s promises to “give significance to what is done.” Bums, 135 N.E. at 275.
¶ 49 Additionally, plausible explanations exist for Thomas to permit the tree removal. For example, Thomas could have changed his mind about the need for the removal or acquiesced to the removal in anticipation that Hal and Schepp Partnership would finalize a partition agreement that deeded exclusive title in Lots 17 and 18 to Hal. The existence of alternative reasons for Thomas’ act defeats a finding of part performance. See Gene Hancock Constr., 20 Ariz.App. at 124, 125, 510 P.2d at 754, 755 (holding as matter of law that buyer’s acts in obtaining financing and having costly engineering studies made of subject property in reliance on alleged oral sales agreement did not constitute part performance, implicitly concluding these acts did not by themselves evidence an agreement); MH Inv. Co. v. Transamerica Title Ins. Co., 162 Ariz. 569, 574, 785 P.2d 89, 94 (App.1989) (holding escrow agent’s acts in closing multiple escrows in reliance on oral agreement not unequivocally referable to that agreement despite agent’s reported reliance on alleged oral agreement because closings also explained by reference to written escrow instructions); Williams, 326 S.E.2d at 662 (holding tenant’s forbearance from engaging in competition with other tenants in commercial strip center not part performance of landlord’s agreement not to lease to competing businesses; plausible explanations exist for tenant’s forbearance unrelated to alleged agreement).
¶ 50 The provision of the statute of frauds applicable to transfers of interests in real *286property “was adopted for the express purpose of preventing existing estates in land from being upset by parol evidence____” Coleman v. Coleman, 48 Ariz. 337, 344, 61 P.2d 441, 444 (1936). Today’s decision so expands the part-performance exception to the statute of frauds, I fear that the requirement for a writing to evidence a transfer of interest in real property can now be easily overcome, leading to the very mischief sought to be prevented by the statute of frauds. I would affirm.
. Many other courts have held that whether acts are unequivocally referable to an oral agreement turns solely on an examination of the acts themselves. See, e.g., Payne v. Warren, 282 Ga.App. 524, 639 S.E.2d 528, 530 (2006) (deciding that although sale of tract of land consistent with the oral extension of contract for multiple tracts, sale of tract not part performance of oral extension as sale not inconsistent with the lack of an extension agreement); Brooks v. Cooksey, 427 S.W.2d 498, 505 (Mo.1968) (concluding plaintiff’s act in voting defendant's shares at stockholders’ meeting not part performance of defendant’s agreement to sell shares as number of reasons exist to give a proxy); Alvarez v. Alvarez, 72 N.M. 336, 383 P.2d 581, 585 (1963) (" 'An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance.' ” (quoting Woolley v. Stewart, 222 N.Y. 347, 118 N.E. 847, 848 (1918)), generally approved of in Gene Hancock Constr., 20 Ariz.App. at 125, 510 P.2d at 755; Pair v. Rook, 195 Va. 196, 77 S.E.2d 395, 400 (1953) (" ‘Until acts are alleged which, of themselves, imply the existence of such a contract, parol evidence to show its terms is inadmissible.' ’’ (quoting Plunkett v. Bryant, 101 Va. 814, 45 S.E. 742, 743 (1903))); Chevalier v. Lane’s, Inc., 147 Tex. 106, 213 S.W.2d 530, 533 (1948) ("Every act of plaintiff may be explained quite separate and apart from any alleged oral contract and no act is 'unequivocally referable’ thereto.”)).
. The Majority inaccurately states that, “[wjhen Hal began to cut down the sixty-five foot tamarack trees, Thomas objected” and then withdrew that objection the same day. Supra ¶¶ 39, 40. In his affidavit presented to the trial court with the summary judgment papers, Thomas did not say he expressed any objection to Hal about the tree removal. Rather, he told Hal only that the neighbors would be upset about the loss of the trees. Even viewing the evidence in the light most favorable to Schepp Partnership, Thomas’ words cannot be construed as an expressed objection to Hal’s actions.