Quick answer
Under Hawaii law, if co-owners (including heirs who inherit an interest) cannot agree and one co-owner wants to end the shared ownership, a court can order a partition action. The court prefers to divide land in kind when practical, but if a physical division is impractical or would cause prejudice, the court can order a sale and divide the proceeds among the owners. Refusing mediation or refusing to sign a settlement does not by itself prevent a partition or a court-ordered sale.
Primary statutory authority: see Hawaii Revised Statutes, Chapter 669 (Partition of Lands).
How this works in practice under Hawaii law
Start with ownership status. Whether the property is held as joint tenants, tenants in common, or as part of an estate affects who has the right to force a sale:
- Joint tenancy: typically a surviving joint tenant takes full title at the death of a co-owner. If the deed shows joint tenancy with survivorship, heirs of the deceased usually do not have a current ownership share to partition.
- Tenants in common: each owner (including heirs who received the decedent’s share) owns an individual fractional interest that can be partitioned or sold by the court.
- Estate/probate holdings: if the decedent’s interest has not yet been distributed by probate, check the probate status. Once the estate distributes interests, heirs who receive a share can be parties to a partition suit.
If you (an owner or heir) want a sale and other co-owners refuse mediation or won’t sign a buyout, you can file a partition action in court asking for:
- partition in kind (physical division), or
- if division in kind is impractical or would cause prejudice, partition by sale with court supervision and distribution of proceeds.
Hawaii’s partition statutes authorize the court to order sale when partition in kind is not suitable. The court evaluates whether physical division is feasible and fair, and weighs factors such as size, character of the property, improvements, and prejudice to owners. If the court orders a sale, it will supervise notice, sale procedures, and distribution of net proceeds among owners and lienholders.
What refusing mediation or refusing to sign means
Refusing mediation or declining to sign a settlement does not block a partition lawsuit. Courts often encourage or require attempts at settlement or mediation, and a failure to mediate may affect scheduling or cost awards, but it does not eliminate the right to ask the court to partition the property. If a co-owner refuses to cooperate with administrative paperwork for sale, the court can still proceed and appoint a commissioner, referee, or sale agent to carry out the sale and confirm it on the record.
Typical steps and timeline
- Confirm title and ownership type (review the deed and any probate records).
- Attempt negotiation or mediation (often required by court rules or local practice). Document attempts to settle.
- File a partition complaint in the circuit court where the property is located. Serve all interested parties and lienholders.
- Court may order appraisal, inspection, or mediation. If the court finds partition in kind is infeasible, it will order sale.
- The court appoints a commissioner (or similar official) to conduct the sale under court supervision. The sale is usually by public auction or other court-approved method.
- The court confirms the sale and authorizes distribution of proceeds after paying costs, liens, and allowed fees.
Timing depends on case complexity, whether heirs are contesting ownership, whether probate issues are unresolved, and court backlog. Expect months to over a year in contested matters.
Costs, fees, and distribution of proceeds
The partition plaintiff typically bears filing fees, appraiser and commissioner fees, and attorney fees unless the court orders otherwise. When the court orders sale, proceeds pay:
- liens and mortgages (in order of priority),
- court-ordered sale and administrative costs,
- attorney fees if the court awards them,
- net remainder distributed to owners according to their fractional interests.
Practical alternatives to a court-ordered sale
- Buyout: one owner buys out others at an agreed price (often cheaper, faster).
- Voluntary partition agreement: owners agree to divide the land formally.
- Refinance or sell voluntarily and allocate proceeds by agreement.
- Listing the property for sale with a listing agreement approved by all owners, with proceeds split according to agreement.
These solutions avoid litigation costs and loss of control over sale timing and method.
When you should strongly consider hiring an attorney
Consider counsel if any of the following apply:
- Ownership is unclear or title issues exist.
- Probate is open or contested.
- Significant equity or liens exist on the property.
- Co-owners actively contest the partition or boundaries.
- You want to seek an award of costs or attorney fees from the other side.
Helpful Hints
- Confirm how the deed lists ownership (joint tenancy vs tenancy in common) before taking action.
- Document all settlement and mediation offers in writing; courts view documented attempts favorably.
- Keep mortgage and property taxes current—unpaid liens can complicate distribution.
- Get a recent appraisal early to set realistic expectations for buyouts or sale proceeds.
- Ask the court clerk or local courthouse about mandatory mediation or local partition procedures.
- Consider negotiating a buyout with a short deadline before filing; it can be cheaper than litigation.
- If heirs live out of state or are hard to locate, hire a title searcher or a process server experienced with partition cases.