Disclaimer: This article is for general information only and is not legal advice. It does not create an attorney-client relationship. For advice about your specific situation, consult a licensed Hawaii attorney.
Detailed Answer
When co-owners of real property disagree about selling, Hawaii law provides a court remedy called a partition action. A partition action allows one or more owners to ask the court to divide or sell the property and distribute the proceeds. The statutory framework for partition in Hawaii is found in Chapter 669 of the Hawaii Revised Statutes. For the official text of the law, see the Hawaii Revised Statutes, Chapter 669: https://www.capitol.hawaii.gov/hrscurrent/Vol12_Ch0601-0688/HRS0669/.
Key points under Hawaii law and common court practice:
- Who can file: Any owner with an undivided interest in the property (for example, tenants in common or joint tenants) can file a partition action in the Circuit Court for the circuit where the property sits. If the property is owned as tenancy by the entirety, special marital protections may apply and you should consult counsel.
- Two possible outcomes:
- Partition in kind: The court divides the land into separate physical parcels so each owner gets a piece. The court will pursue this when it is practical and fair.
- Partition by sale: If physical division would be impractical, would substantially reduce value, or would be inequitable, the court can order the property sold and the net sale proceeds distributed among owners according to their ownership shares.
- When the court orders sale: Courts generally prefer partition in kind when it can be done fairly. The court will order a sale when dividing the property would be impractical or would unfairly harm one or more owners. Factors include the size and shape of the parcel, improvements, easements, unequal contributions or liens, and the relative value of a proposed division.
- Process and result: A partition action is a civil lawsuit. The court gives notice to all owners and interested parties, hears evidence about ownership and value, and then decides whether to divide the land or order a sale. If the court orders a sale, it will handle (or delegate) sale procedures, pay off liens and costs, and distribute net proceeds by ownership shares after costs. Any mortgages or liens typically remain attached and are paid from sale proceeds in priority order.
- Costs and timing: Partition suits can take months and sometimes longer. Expect court costs, title work, appraisal and broker or auction fees, attorneys’ fees (which may be awarded by the court in some circumstances), and other expenses to be deducted from sale proceeds.
- Alternatives to court-ordered sale: Because partition litigation is costly and adversarial, courts encourage owners to negotiate. Common alternatives include one owner buying out the others, selling by agreement and splitting proceeds, or mediation to reach a settlement that avoids litigation.
- Practical example (hypothetical): Three siblings own a beachfront lot as tenants in common. Two want to sell; one refuses. One sibling files a partition action in the Circuit Court where the lot is located. If the court finds the lot cannot be fairly divided (for example, because of a single house and small lot), it will likely order a sale and divide the net proceeds among the three siblings according to their ownership interests after paying liens, taxes, and court-ordered costs.
How to start (practical steps)
- Confirm ownership type: Check the deed(s) to see whether owners hold title as tenants in common, joint tenants, or some other form. That affects rights and remedies.
- Talk before you sue: Offer a buyout or mediation—settlement avoids expense and delay.
- Hire a Hawaii real property attorney: They can evaluate title, liens, and the likely outcome and file a partition complaint if needed. Partition actions are heard in the Circuit Court for the county where the property is located. See Hawaii Judiciary Circuit Courts: https://www.courts.state.hi.us/courts/circuit.
- Gather documents: deed(s), mortgage documents, tax bills, leases, expense records, and any written agreements among owners.
- Consider valuation: The court often orders appraisals. You can get an independent appraisal sooner to inform settlement talks.
Helpful Hints
- Try mediation first. Courts favor negotiated solutions and many disputes settle.
- If you want the property sold, be prepared to prove that division in kind is impractical or would be inequitable.
- Know that liens and mortgages are paid from sale proceeds before owners split net proceeds.
- Expect the court to allocate sale proceeds according to ownership shares unless there is evidence justifying a different allocation (for example, unequal contributions, improvements, or agreements among owners).
- Document improvements and payments you made toward the property; the court may consider equitable adjustments.
- Understand that a forced sale may reduce the property’s value compared with a private sale; the court will still try to get a fair market sale price.
- Get legal advice early to understand costs, likely outcomes, and tactical options (buyout, sale by agreement, partition, or settlement).
For the statutory framework, see Hawaii Revised Statutes, Chapter 669 (Partition): https://www.capitol.hawaii.gov/hrscurrent/Vol12_Ch0601-0688/HRS0669/. For court filing and venue rules, consult the Hawaii Judiciary Circuit Courts site: https://www.courts.state.hi.us/courts/circuit.
If you want help locating a qualified Hawaii property or real estate attorney to discuss options, I can provide suggestions about what to ask and what documents to bring to an initial consultation.