Answer: How to Defend a Partition Action to Protect an Inherited Home in New York

Short answer: If a co-tenant sues to partition (force sale) of an inherited home in New York, you can defend by timely responding, seeking partition in kind (division) or a buyout, asserting legal and equitable defenses (credit for payments, contribution for improvements, laches, estoppel, or other title defects), asking for an accounting, and—if appropriate—seeking temporary relief to prevent an immediate sale. The law in New York generally prefers partition in kind when practicable. See the Real Property Actions and Proceedings Law (RPAPL) for the governing rules: RPAPL §901 and the RPAPL collection: New York RPAPL.

Detailed Answer — Step-by-step defense strategy under New York law

1. Read the papers immediately and preserve timelines

When you are served with a summons and complaint in a partition action, the court papers will include deadlines to answer or otherwise respond. Do not ignore them. Missing the deadline can result in a default judgment and loss of the ability to present defenses. If you need more time, seek counsel quickly to consider a timely motion for an extension or other procedural options.

2. Consider partition in kind versus sale

New York law generally favors partition in kind (physically dividing property) if it can be done without great prejudice to owners. If the property is divisible (for example, a multi-parcel estate or two separate dwelling units), ask the court to order partition in kind rather than sale. If the home cannot be fairly divided, the court may order a sale. See RPAPL §901 and related provisions: RPAPL §901 and the RPAPL index: New York RPAPL.

3. Ask the court for a buyout or credit instead of sale

You can propose that one co-tenant buy the others out at an appraised fair market value, or you can ask the court to order a buyout rather than an open sale. Courts often consider buyouts to avoid the costs and unpredictability of a public sale. If you have made mortgage payments, taxes, insurance, or improvements, ask the court to credit those payments against your share.

4. Assert legal and equitable defenses and offsets

Common defenses and offsets in New York partition litigation include:

Credit for mortgage payments, property taxes, insurance, utilities, and repairs you paid (seek accounting).
Credit for capital improvements that increased the value of the property (with proof of payment and value).
Claims of adverse possession or exclusive possession when applicable (requires meeting statutory elements).
Equitable defenses such as laches (unreasonable delay causing prejudice), estoppel, unclean hands, or waiver if the co-tenant’s conduct bars relief.
Challenging the plaintiff’s standing or title defects (if the plaintiff does not actually own the claimed interest).

To assert offsets, you will usually ask the court for an accounting so the judge or a court-appointed referee can determine each party’s share after credits and charges.

5. Use motions strategically

You can bring procedural motions to protect your rights:

Motion to dismiss (if the complaint fails to state a cause of action or plaintiff lacks standing).
Motion for a stay or temporary restraining order to stop a threatened sale or transfer—available only if you can show urgent, irreparable harm and likelihood of success on the merits.
Motions seeking appointment of a referee to appraise the property and conduct an accounting.

6. Consider negotiation, mediation, or a buyout agreement

Partition actions can be expensive and adversarial. Consider mediation, a negotiated buyout, or a private sale among co-owners. Courts often approve settlements that fairly allocate proceeds and credits among co-tenants.

7. Documentation and evidence you will need

Gather and organize documents that support your defenses and offsets, such as:

Deeds, wills, and probate paperwork showing your ownership share.
Mortgage statements, cancelled checks, receipts for taxes, insurance, utilities, repairs, and improvements.
Appraisals or market analyses.
Records showing exclusive possession or contributions by other co-tenants (if relevant).

8. Understand likely outcomes and costs

If the court orders a sale, it typically appoints a referee to sell the property and divide net proceeds among owners after costs, liens, and credits. Partition litigation can be lengthy and costly—court fees, referee fees, attorneys’ fees, and sale costs reduce the net proceeds. Courts may allocate costs among parties according to equity and contribution.

Relevant New York law (starter references)

Main statutory authority for partition actions is in the New York Real Property Actions and Proceedings Law (RPAPL). The statute that expresses the preference for partition in kind is at RPAPL §901. Access the statute collection here: New York RPAPL. For specific procedural deadlines and civil rules, consult the New York Civil Practice Law and Rules (CPLR) and local court rules.

Practical next steps — what to do right now

Do not ignore the court papers. Note the response deadline in the summons and complaint and act immediately.
Preserve evidence: collect deeds, bills, receipts, insurance and mortgage records, appraisal reports, and communications with co-owners.
Talk to an attorney experienced in New York partition and property litigation to evaluate defenses and options (mediation, buyout, partition in kind).
If you face an imminent sale, ask counsel about emergency relief (temporary restraining order or stay).
Consider negotiation or mediation to avoid the cost and uncertainty of a court-ordered sale.

Helpful Hints

Respond timely to the summons and complaint—procedural defaults can be fatal to your case.
Get a current appraisal before settlement talk—understanding value helps in buyout negotiations.
Document every payment you made for mortgage, taxes, insurance, utilities, and improvements. Receipts matter.
Keep communication records with co-tenants in case their statements or promises are relevant to equitable defenses.
Consider early mediation. A negotiated buyout often saves money and time compared with litigation.
Beware of unilateral attempts to sell or transfer the property—do not rely on informal agreements without court approval or a written settlement.
Ask the court for an accounting if you believe you should be credited for payments or improvements.
If you live in the home and the other co-tenant seeks sale, explain to the judge how a sale would disproportionately prejudice you (this can influence requests for buyout or delay).

Disclaimer: This article explains general information about New York partition law and common defenses and is not legal advice. It does not create an attorney-client relationship. For advice tailored to your specific situation, consult a licensed New York attorney promptly.