Disclaimer: This is general information only and not legal advice. I am not a lawyer. For advice specific to your situation, consult a licensed New Jersey attorney.
Detailed Answer — How a partition action to force sale works under New Jersey law
When two or more people own real property together and one owner wants to end shared ownership, New Jersey law lets a co-owner ask a court to divide (partition) the property or force its sale. These actions are governed by New Jersey statutory law on partition (see N.J.S.A. 2A:63-1 et seq.).
1. Who can file?
A current legal owner of the property who holds title as a tenant in common or otherwise without a right of survivorship can file. If the property passed through probate and title now lists you as an owner, you can file. If the title is still in your late father’s name, you may need to join the estate or executor as a party, or resolve title through probate before proceeding.
2. Check title and ownership first
Before filing, obtain a certified copy of the deed and a current title report or county property search. Determine whether ownership is:
- Joint tenancy with right of survivorship — the surviving co-owner(s) usually take full title and partition typically won’t apply; or
- Tenancy in common — each owner has a distinct share and can seek partition.
3. Probate and heirs
If your father died recently, check whether the estate opened probate. If the estate is open, the executor or administrator may control transfer of title. You may need to join the estate or the personal representative as a defendant (or plaintiff) in the partition action so the court can determine everyone’s rights.
4. Try negotiation first
Courts encourage co-owners to negotiate: options include a buyout (one owner pays others), a voluntary agreement to sell, or dividing the property physically if feasible. Mediation can save time and cost. If negotiations fail, a partition action is the next step.
5. Filing the partition complaint
To start, prepare and file a complaint for partition in the New Jersey Superior Court in the county where the property sits. The complaint should include:
- A legal description of the property;
- Names and addresses of all owners and any parties with recorded interests (mortgagees, lienholders, tenants, judgment creditors);
- The nature of your ownership interest and basis for relief (that partition or sale is appropriate); and
- A clear request that the court order partition in kind or, if that’s impractical, sale of the property with proceeds distributed.
Courts handle partition actions in the Superior Court (Civil Division / General Equity or Chancery functions depending on the county). Check local filing rules and pay the filing fee.
6. Service and joinder of necessary parties
Serve the complaint on all co-owners and any parties with recorded interests (mortgage lenders, judgment creditors). If someone’s heirs or the estate may claim an interest, they must be joined so the court can bind everyone.
7. What the court can order
The court will first evaluate whether partition in kind (physically dividing the land) is practical. If not, the court will order a sale and appoint a court-appointed commissioner or trustee to sell the property and distribute proceeds among owners after paying liens, taxes, and court costs. The court may also order an accounting of rents, profits, and expenses and can allocate costs and fees between parties.
8. Sale process
The sale can be a public auction or a private sale supervised by the court. The court will confirm the sale and direct distribution of proceeds. The court’s sale process protects lenders and lienholders by ensuring their interests are paid from the sale proceeds.
9. Timelines and costs
Timelines vary. Simple cases can take several months; contested cases can take a year or more. Expect court costs, filing fees, possible commissioner or referee fees, and attorney fees. The court can assess costs against the losing party in some circumstances.
10. Common complications
- Unclear title or missing heirs increases complexity and delays.
- Mortgages and liens must be paid or dealt with; lienholders must be joined.
- If one co-owner occupies the property and doesn’t cooperate, the court can still order sale but may award occupancy rent as part of the accounting.
- If the property is in a trust, the trustee or trust beneficiaries may need to be involved instead of probate.
11. Statutes and where to read them
New Jersey’s partition laws are in the statutes (refer to N.J.S.A. 2A:63-1 et seq.). For court procedures and local filing requirements, check the New Jersey Courts website at njcourts.gov.
12. When to talk to an attorney
Given title issues, potential probate involvement, and possible liens, many co-owners find it useful to consult a New Jersey real property attorney before filing. An attorney can review title, prepare pleadings, advise on strategy (buyout vs litigation), and represent you in court.
Helpful Hints
- Gather documents: current deed, death certificate, any will or probate documents, mortgage statements, tax bills, and any written agreements between co-owners.
- Run a title search or obtain a title report before filing to identify mortgages and liens to be joined.
- Talk to co-owners: offer a buyout or mediation. Courts prefer settlement over litigation.
- Check whether the property is in a trust or was titled jointly with right of survivorship — these facts affect your ability to file.
- If the estate is open, contact the executor or the probate court; the estate may need to transfer title first.
- Expect to list and serve all lienholders and potential heirs; missing a party can delay the case.
- Ask the court clerk for local filing rules and forms; procedures vary by county.
- Keep clear records of expenses and any rent collected — the court will account for these when dividing proceeds.
- If you want to keep the house, be prepared to show how you will compensate co-owners (buyout) and how you will handle mortgages and taxes moving forward.
If you would like, I can provide a checklist of documents to gather or a sample list of questions to ask a New Jersey property attorney when you seek help.