How to File a Partition Action in Hawaii When a Co-Owner Refuses

Detailed Answer — Overview and step-by-step process

Hypothetical facts used for illustration: You and another person own a house in Hawaii as tenants in common. The other co-owner refuses to sell or transfer their interest. You want to force a division or sale so you can get your share of the equity.

1) Confirm the ownership type and collect documents

• Get a copy of the deed showing how title is held (joint tenancy vs. tenancy in common). In Hawaii, most partition claims arise among tenants in common, because tenants in common each have a separate share that can be partitioned. If title is joint tenancy, the right of survivorship may apply and different rules can affect the claim.
• Collect mortgage statements, liens, property tax records, lease or rental agreements, and any written communications about the property.

2) Try to resolve the dispute outside court first

• Send a written demand to the co-owner asking for sale or division. Keep a copy and send by certified mail. Courts will expect you to have tried to negotiate in many cases.
• Consider mediation. Many disputes can be resolved by mediated buyouts or agreed sales, which save time and money.

3) Decide whether to ask for partition in kind (physical division) or partition by sale

• Partition in kind: the court divides the land into separate parcels consistent with ownership shares. This is possible mainly for large, divisible properties.
• Partition by sale: the court orders sale of the property and distributes proceeds among owners after paying liens and costs. Courts commonly order sale when division in kind is impractical.

4) Prepare and file a partition complaint in the appropriate Hawaii court

• File in the circuit court of the county where the property is located. Hawaii’s circuit courts hear civil actions involving real property. See the Hawaii State Judiciary for county circuit court information: https://www.courts.state.hi.us/
• A typical complaint will identify the parties, describe the property (legal description), describe each party’s claimed interest, state that partition is sought, and request that the court either partition the property in kind or order a sale and distribute proceeds. Attach copies of deeds and other supporting documents.
• Filing fees and local court form requirements vary by county; check the Judiciary website or contact the clerk’s office in the county where the property is located.

5) Serve the complaint and other required documents on co-owners and interested parties

• All defendants (co-owners, mortgage holders, lienholders) must be served according to Hawaii procedural rules. If a co-owner cannot be found, the court allows substituted service or service by publication in some circumstances.

6) Preliminary motions and temporary relief (if needed)

• You can ask the court for interim relief to preserve the property’s value — e.g., an injunction to prevent waste, an order requiring payment of taxes or insurance, or appointment of a receiver to collect rents. If the other co-owner is disposing of assets or failing to pay mortgage or taxes, seek immediate relief.

7) Discovery, appraisal, and valuation

• The parties may exchange documents and take depositions. The court will often order one or more appraisals to determine fair market value. The court may appoint commissioners to assist with partition in kind or to oversee a sale.

8) Court decision: partition in kind or sale, distribution of proceeds

• If practical, the court may divide the land between owners. If not practical, it will order a sale. Before distributing proceeds, the court will pay liens, mortgages, sale costs, and may account for improvements and necessary expenses. Distribution is generally according to ownership shares, subject to offsets for mortgages, liens, or equitable adjustments (e.g., one owner paid most mortgage or made improvements).

9) Post-judgment steps

• If the property is sold, the clerk or appointed commissioner handles the sale and the clerk’s office distributes proceeds according to the court’s order. If you receive proceeds, you are responsible for reporting any tax consequences. If the court divides property in kind, you must follow the court’s conveyancing instructions to record new deeds.

Key Hawaii authority and resources

• Hawaii State Judiciary (filing and court contacts): https://www.courts.state.hi.us/
• Hawaii Revised Statutes and searchable code (search for statutes on partition, property, and civil procedure): https://www.capitol.hawaii.gov/hrscurrent/

Note: This guide summarizes typical steps in Hawaii. Specific pleading language, timing, and procedures follow Hawaii court rules and local practice. Because statutory cross-references and local forms can change, check current statutes and the local circuit court clerk.

Disclaimer: This article is for educational purposes only. It does not constitute legal advice, and nothing here creates an attorney-client relationship. For advice about your specific situation, consult a licensed Hawaii attorney experienced in real property and partition actions.

Helpful Hints

• Gather title documents early: deed, mortgage, tax bills, HOA records, leases, and insurance policies.
• Check for liens and mortgages before filing — lenders may need to be named and paid from sale proceeds.
• Try mediation or a negotiated buyout first; it often saves money and time.
• Keep a written record of all communications with the co-owner; courts will rely on evidence of attempts to resolve disputes.
• Consider immediate relief if the property is at risk (e.g., unpaid taxes, imminent foreclosure, physical damage). Temporary court orders can prevent loss of value.
• Be realistic about costs: partition litigation, appraisals, and sale expenses can reduce net proceeds. Compare litigation costs with potential benefit of forcing a sale.
• If you live out of state, hire local counsel. Real property practice is local and county-specific in Hawaii.
• Ask the court clerk for local filing rules and fee schedules, and check the Hawaii Judiciary site for self-help resources: https://www.courts.state.hi.us/
• Tax consequences: proceeds from sale or receipt of a buyout may have capital gains or other tax effects; consult a tax professional.