Detailed Answer

This FAQ explains what typically happens if mediation fails and you decide to file a partition action in Hawaii to force the sale of land owned jointly with one or more people. This is an overview for educational purposes only and does not substitute for legal advice.

What is a partition action?

A partition action is a lawsuit asking the court to divide real property among co-owners or to order its sale and divide the proceeds. Co-owners may be tenants in common, joint tenants (subject to special rules), or owners with unequal shares. If the court finds physical division feasible, it can order a partition in kind (divide the land). If division is not practical or fair, the court can order a partition by sale and distribute the sale proceeds among the owners.

Can I file a partition action after mediation fails?

Yes. Mediation is often a required or encouraged step for resolving disputes, but a failed mediation does not prevent a co-owner from filing a partition action in court. If you and the other owner(s) cannot reach an agreement during mediation, filing a partition action is the usual next step when the goal is to force a sale or physically divide the property.

Which court handles partition actions in Hawaii?

Partition actions are filed in the state trial court with jurisdiction over the property—typically the Hawaii State Circuit Court for the island where the property lies. For general information about Hawaii courts, see the Hawaii Judiciary site: https://www.courts.state.hi.us/. For statutory authority and to review statutes that govern civil actions and property in Hawaii, search the Hawaii Revised Statutes at: https://www.capitol.hawaii.gov/hrscurrent/.

Typical sequence of events after you file

1. File the complaint: You (the plaintiff) file a complaint for partition naming all co-owners and persons with an interest in the property.
2. Service of process: Each defendant must be served with the complaint and summons so they have an opportunity to respond.
3. Answer and preliminary defenses: Defendants can answer, claim offsets, assert lienholders’ rights, or raise title problems (clouds on title).
4. Pretrial procedures and discovery: Parties exchange documents (deeds, mortgages, leases, tax records, surveys) and may take depositions or request appraisals.
5. Possible court-ordered mediation or settlement conference: Courts sometimes order settlement conferences or mediation. If mediation already failed privately, the court may still try to encourage settlement before a sale.
6. Evaluation: partition in kind vs partition by sale: The court evaluates whether the property can be fairly divided. If the land can be divided without undue prejudice to owners, the court may order a partition in kind. If not, the court will order a sale.
7. If the court orders sale: The court typically appoints a commissioner, referee, or special master to manage sale procedures (appraisal, marketing, sale, and distribution of proceeds). Sales often require court confirmation.
8. Distribution of proceeds: Sale proceeds pay liens (mortgages, tax liens), sale costs, and any allowed costs/attorney fees. Remaining funds get divided according to each owner’s legal share.

Factors the court considers when deciding in-kind division vs sale

The court considers whether physical division:

• Can be made without materially harming any owner’s interest;
• Would result in parcels of reasonably equal value given each owner’s share;
• Is practical in light of property shape, size, improvements, zoning, access, and infrastructure;
• Would be inequitable because of existing improvements, leases, or encumbrances.

How property value and liens affect the outcome

Before sale, the court or its commissioner usually obtains one or more appraisals to determine fair market value. Liens and encumbrances (mortgages, tax liens) are satisfied from sale proceeds in priority order. If one owner owes money or made improvements, the court may allow credits or offsets before dividing proceeds. If a co-owner is in possession and has collected rent, the court can account for rents and expenses and may adjust distributions accordingly.

Costs, fees, and who pays

Costs of a partition action can include filing fees, service fees, appraisal fees, commissioner/referee fees, title work, auction or broker fees, and attorney fees. Hawaii courts may award attorney fees and costs in partition cases when an agreement, statute, or equitable circumstances justify awarding fees to one side. Check the Hawaii Revised Statutes and local rules and consult an attorney about whether a fee award is likely in your case. For statute look-up start at: Hawaii Revised Statutes.

Timespan

Partition actions can take months to over a year depending on case complexity, how quickly appraisals and sales occur, court schedules, and whether parties contest matters such as title or valuation. Sales that require public advertising and court confirmation can lengthen the process.

Practical options besides forcing a sale

• Buyout: One owner buys the other owner(s) out at an agreed price or court-determined valuation.
• Sell by agreement: Co-owners agree to list the property and divide sale proceeds voluntarily.
• Refinance or restructure debt: If mortgage debt blocks a buyout, refinancing may enable a buyout.
• Lease or income-sharing: Co-owners agree to lease the land and share income until a future sale.

Documents and evidence to gather before filing

• Deeds and recorded title documents;
• Mortgages, liens, tax records, and judgments affecting the property;
• Surveys, plats, and boundary descriptions;
• Property tax bills and utility records;
• Leases, rental records, and records of improvements or expenditures;
• Communications showing attempts to mediate or settle.

When to hire an attorney

Consider hiring an attorney if the other owners contest the sale, if title is unclear, if significant liens exist, if large sums or investments are at stake, or if you need help valuing or marketing the property. An attorney can draft the complaint, handle service, manage discovery, advise on settlement or buyout strategy, and represent you at trial and in sale proceedings.

Where to find help and forms

Start at the Hawaii Judiciary site for court locations and general civil procedure information: https://www.courts.state.hi.us/. For statutes, see the Hawaii Revised Statutes search page: https://www.capitol.hawaii.gov/hrscurrent/.

Disclaimer

This information is educational only and not legal advice. Laws change and every situation is different. Consult a licensed Hawaii attorney to get advice tailored to your facts.

Helpful Hints

• Do not delay gathering deeds, mortgages, and surveys—early documentation speeds the process.
• Get at least one independent appraisal so you understand fair market value before filing.
• Keep written records of mediation efforts and settlement offers; courts consider good-faith negotiation.
• Consider a neutral broker or valuation expert if owners disagree about value or marketing strategy.
• Ask your attorney whether temporary relief (injunctions or accounting) is appropriate if one owner is dissipating property or collecting rents unfairly.
• Expect the court to prioritize lienholders; unresolved mortgages and taxes reduce proceeds available to owners.
• If you want to stay in the property, explore a buyout or refinancing instead of a forced sale.