FAQ — Partition actions for co‑owned property in New Jersey
Short answer: Any co‑owner (tenant in common or joint tenant) can start a partition action in New Jersey by filing a complaint for partition in the Superior Court (Civil Division). The court will either physically divide the property (partition in kind) if practicable or order a sale and divide net proceeds according to each co‑owner’s legal interest. See N.J.S.A. 2A:34‑1 et seq.
Detailed answer — step‑by‑step guide under New Jersey law
1. Who may file?
Any person who holds a present ownership interest in real property may file. That includes tenants in common and joint tenants. If title shows a right of survivorship (joint tenancy), a partition action can still be brought to divide the property or force a sale, but the nature of title and any survivorship claim will be an issue in the case.
2. Where to file
File a Complaint for Partition in the Superior Court of New Jersey, Civil Division, in the county where the property sits. The court has statutory authority to adjudicate partition matters under the Partition statutes (N.J.S.A. 2A:34‑1 and following). See the statute text at N.J.S.A. 2A:34‑1 and related sections.
3. What the complaint should include
- A clear description of the property (street address and legal description).
- A statement of each plaintiff’s and defendant’s claimed ownership interest (e.g., percentage shares, deed citations).
- Facts showing co‑ownership and why partition is requested (e.g., inability to agree, desire to sell or divide).
- A clear request for relief: partition in kind or partition by sale, appointment of a commissioner/referee, and any accounting for rents, waste, or improvements.
- Identification of lienholders (mortgages, judgments) so they can be joined or notified.
4. Joinder of parties and service
All persons with a recorded ownership interest or recorded lien on the property should be named as defendants so the final judgment binds them. Service of process must follow the New Jersey Rules of Civil Practice so no interested party is left out. If parties cannot be found, the court may allow alternative service or publication.
5. Temporary relief and mandatory accounting
Co‑owners may ask the court for temporary orders (for example, to prevent waste, to collect rents, or to require a co‑owner to contribute to mortgage payments or taxes). The court routinely orders an accounting of rents, profits, and expenses and adjusts the distribution of proceeds accordingly.
6. Partition in kind vs. partition by sale
The court prefers partition in kind (physical division) if it is practical and fair. When physical division is impractical — for example, a single‑family house on one lot — the court will order a sale and distribute the net proceeds among the owners according to their shares. The Partition statutes and case law guide how the court decides between division and sale. See N.J.S.A. 2A:34‑1 et seq. (link).
7. How liens and mortgages affect the outcome
Liens on the property (mortgages, tax liens, judgments) are typically paid out of proceeds from sale before owners receive their shares. The court may determine the priority of claims and the share of each party after satisfying secured claims.
8. Procedure for sale
If the court orders a sale, it may direct a public auction or authorize sale through a commissioner/master or sheriff. The court supervises the sale process, confirms the sale, and oversees distribution of proceeds. The court can also set terms to protect parties’ rights and ensure a fair marketing process.
9. Division of proceeds
After sale costs, liens, taxes, and allowed expenses (including any court‑ordered accounting adjustments), the court distributes remaining funds to owners according to legal ownership shares. If owners have paid for improvements or mortgage obligations, the accounting can adjust shares.
10. Possible outcomes and appeals
Outcomes include physical division, sale and distribution, settlement between owners (a buyout), or dismissal if the plaintiff lacks standing. Any party unhappy with the result may appeal under the normal appellate rules.
11. Alternatives to litigation
Co‑owners often avoid court by agreeing to a buyout, mediated settlement, or negotiated sale. These options save time and legal costs and give parties control over the process.
Statutory references (New Jersey): Primary partition authority appears in the Partition statutes, commonly cited as N.J.S.A. 2A:34‑1 and following. See the statute text on the New Jersey Legislature site: N.J.S.A. 2A:34‑1. For related civil procedures and forms, consult the New Jersey Courts self‑help pages at njcourts.gov/selfhelp.
Helpful hints — what to do before you file
- Gather documents: recorded deed(s), mortgage statements, tax bills, homeowner association records, lease agreements, and any written agreements among owners.
- Get a title search: know all recorded owners and liens before you file.
- Try negotiation first: consider mediation, a buyout offer, or listing the property for sale with proceeds split according to ownership.
- Estimate costs: court fees, attorney fees, appraisal and sale costs can reduce your net recovery; budget accordingly.
- Consider the practicalities: a partition in kind is rare for a single house on one lot; courts often order sale instead.
- Account for contributions: document mortgage, tax, and improvement payments each co‑owner made — the court will consider those in its accounting.
- Join lienholders: name mortgagees and recorded lienholders in your complaint so the court can resolve priorities.
- Consult a lawyer: an attorney experienced in New Jersey partition and real estate practice can prepare the complaint correctly, advise on strategy, and explain likely outcomes.