How to Start a Partition Action in Hawaii

Detailed Answer: How a partition action works in Hawaii

If two or more people own the same real estate in Hawaii and cannot agree about dividing, using, or selling it, one or more owners can ask a court to divide the property or order its sale. This court process is called a partition action.

Below is a clear, step-by-step explanation of how to start and pursue a partition action in Hawaii, what the court can do, and what to expect along the way.

1. Who may file a partition action?

Any co-owner of real property generally may file a partition action against the other co-owners. That includes owners who hold title as tenants in common or joint tenants. If the property is subject to special registration (Hawaii Land Court), the action may involve additional steps. You must name all persons who claim an interest in the property as defendants so the court can resolve everyone’s rights.

2. Try to resolve the dispute first

Courts expect owners to try to resolve disputes before asking a judge to divide or sell property. Options to try first include talking with co-owners, mediation, buy-out offers, or hiring a licensed appraiser to set fair market value. A negotiated settlement can save time and money.

3. Prepare and file the complaint

To start the court case you (the plaintiff) file a complaint (petition) in the appropriate Hawaii circuit court. The complaint should:

• Identify the plaintiff and each defendant and describe their claimed interest in the property;
• Describe the property precisely (tax map key, address, and legal description if available);
• Explain why the property must be partitioned (co-owners can’t agree about use, sale, or division); and
• Ask the court to order partition in kind (physical division) or sale of the property and to determine how proceeds or divided parcels should be distributed.

Filing fees apply. If you need help preparing the complaint, consider consulting a Hawaii attorney or the Hawaii State Judiciary self-help resources: https://www.courts.state.hi.us/.

4. Service of process and joining parties

After filing, you must properly serve the complaint and summons on each defendant (co-owner and any other party who claims an interest). If someone cannot be found, the court may allow substitute service. Make sure all persons with possible title or claims are named so the court can resolve all ownership questions.

5. Temporary relief: injunctions and preservation

A party can ask the court for temporary orders to preserve the property during the case. For example, the plaintiff may request a temporary injunction to prevent a co-owner from selling, mortgaging, or otherwise disposing of the property while the partition case proceeds.

6. Partition in kind vs. partition by sale

The court has two main remedies:

• Partition in kind — physical division of the land so each owner receives a separate parcel. The court orders this if the property can be fairly divided without materially reducing its value or unreasonably burdening owners.
• Partition by sale — the court orders sale of the whole property and divides the proceeds among the owners. The court will favor sale when a fair physical division is impractical (for example, a single-family home on a single lot).

The court considers fairness, the character of the land, the economic effect of division, and the owners’ relative interests.

7. Appraisals, commissioners, and reports

The court may appoint neutral commissioners or referees to inspect the property, make appraisals, and recommend a plan for division or sale. The commissioners submit a report to the court; the court then holds a hearing to accept, modify, or reject the report.

8. Sale process if the court orders sale

If the court orders a sale, it will set the terms (method of sale, minimum bid, advertising). Sales are typically by public auction or supervised private sale under court order. After the sale, the court oversees distribution of proceeds after paying costs, lien holders, and any outstanding encumbrances.

9. Costs, liens, and division of proceeds

Before dividing sale proceeds, the court pays valid liens (mortgages, tax liens) and court-ordered costs (commissioner fees, advertising, sale costs). The remaining funds are distributed according to owners’ interests (percentage ownership) after the court accounts for contributions (improvements or payments) as appropriate.

10. Attorneys’ fees and accountants

The court may award attorneys’ fees or other costs in limited situations (for example, if one party acted in bad faith). Keep careful records of payments, repairs, taxes, and receipts to support claims for contribution or reimbursement.

11. Timeline and likely expenses

Partition actions can take months to years, depending on complexity, court schedules, and whether the parties litigate. Expect appraisal and commissioner fees, court costs, sale expenses, and attorneys’ fees if you hire counsel. A negotiated resolution is typically faster and less expensive.

12. Special notes about property registered in Hawaii Land Court

If the property is registered in the Land Court, the court handling the partition may need to follow Land Court procedures and notify the Registrar of the Land Court. Check with a lawyer or the Hawaii Judiciary for specific Land Court rules.

Statutes and official resources

Hawaii’s laws and court rules guide partition actions. See the Hawaii Revised Statutes and the Hawaii State Judiciary for details and forms:

• Hawaii Revised Statutes (search statutes and chapter listings): https://www.capitol.hawaii.gov/hrscurrent/
• Hawaii State Judiciary (court information and self-help resources): https://www.courts.state.hi.us/

Because statute citations and procedural rules can change, consult the current HRS and Hawaii court rules or an attorney for the most current, applicable authority.

Helpful Hints

• Collect documents: deed(s), title search or abstract, mortgage statements, property tax records, homeowners association rules, and any written agreements between owners.
• Get an appraisal early so all parties know fair market value when negotiating a buyout.
• Consider mediation before filing — courts encourage settlement and many disputes resolve faster that way.
• If you plan to ask the court to sell, prepare to propose sale terms (auction vs. private sale) and a minimum acceptable price backed by market data.
• Ask the court for a temporary injunction if a co-owner is trying to sell or encumber the property during the dispute.
• Be ready for costs: appraisers, commissioner fees, advertising, closing costs, and possible attorney fees reduce sale proceeds.
• Check whether the property is in Land Court — Land Court properties sometimes require extra procedural steps.
• Tax consequences: selling real property can have capital gains and reporting consequences. Talk with a tax advisor about potential liabilities.
• Document improvements, repairs, and payments toward mortgage or taxes — the court may consider contributions when distributing proceeds.
• Contact a Hawaii-licensed attorney if ownership is contested, if substantial money is at stake, or if the case involves complex title issues.