Disclaimer: This is general information only and not legal advice. If you need advice about your specific situation, consult a licensed New York attorney.
Detailed Answer
When co-owners cannot agree on dividing real property in New York, either co-owner can ask a court to divide or sell the property through a partition action under New York law (see N.Y. Real Prop. Actions & Proc. Law § 901: https://www.nysenate.gov/legislation/laws/RPAPL/901). A partition action is a lawsuit that forces the division of title or orders the sale of the property and distribution of proceeds.
Who may file
Any person who owns an undivided interest in real property (joint tenant, tenant in common, or co-tenant) may file a partition action against other co-owners. The plaintiff must show an ownership interest in the property.
Main goals the court can order
- Partition in kind: physically divide the property so each owner receives a separate parcel (possible only when a fair physical division is practical).
- Partition by sale: order the sale of the entire property (usually at public auction or by private sale approved by the court) and distribution of proceeds among owners according to their ownership shares.
Typical step-by-step process
- Prepare and file the complaint: The plaintiff (co-owner asking for partition) files a complaint in the appropriate New York Supreme Court (county where the property lies) naming all co-owners and any lienholders as defendants. The complaint should describe the property, each party’s interest, and the relief sought (partition in kind or sale).
- Serve defendants and interested parties: All co-owners and persons with recorded interests (mortgagees, judgment creditors, tenants) must be served with the summons and complaint so the court can determine rights and responsibilities.
- Defendants respond: Defendants typically answer the complaint. They may raise defenses, assert counterclaims (for example, asking for an accounting of rents and expenses), or request alternative relief (such as buyout). Failing to respond can lead to a default judgment.
- Court appoints commissioners or a referee: If necessary, the court appoints neutral commissioners or a referee to inspect the property, attempt to divide it, and report back to the court. The appointment and duties of such officers follow the rules in New York partition law (see RPAPL §901 for procedural framework: https://www.nysenate.gov/legislation/laws/RPAPL/901).
- Inspection and report: The appointed officer inspects the property and recommends whether partition in kind is practical. The report addresses practical division, valuation, and whether a sale is necessary.
- Court decision—division or sale: The judge reviews the report and other evidence. If in-kind division is feasible without prejudice to owners, the court may divide the land. If division is impractical or unfair, the court commonly orders a sale and directs how to sell (public auction, private sale subject to court approval, or other method).
- Accounting, liens, and distribution: Before distributing sale proceeds, the court resolves liens, mortgages, and claims for reimbursement (improvements, taxes, necessary repairs). The court awards costs of the action, expenses of the commissioners/referee, and may credit unequal contributions. After these adjustments, the remaining proceeds are divided according to each owner’s legal share.
- Appeal rights: Parties can appeal final judgments under New York appellate procedures if they believe the court erred on law or procedure.
Timing and cost
Partition actions vary widely in duration. Simple uncontested partitions may take several months; contested cases with valuation disputes, multiple lienholders, or complex property division can take a year or more. Costs commonly include court fees, attorneys’ fees, appraisal fees, fees for commissioners or referees, and costs associated with sale. Courts may apportion costs between parties.
Common issues to watch for
- If the property has a mortgage or other recorded liens, those interests remain and are paid from sale proceeds or dealt with in the judgment.
- Co-owners who substantially improve the property may seek credit or reimbursement from proceeds; courts assess these claims in the accounting stage.
- Possession and rents: If one co-owner has been occupying the property and excluding others, the court can order accounting for rents and profits and adjust distributions accordingly.
- Buyout offers and settlement: Parties can negotiate a buyout or settlement anytime; courts often encourage resolution without sale.
Where to file and which rules apply
File the partition action in the New York Supreme Court in the county where the property is located. The procedure follows the Real Property Actions and Proceedings Law (RPAPL), including the statutes that govern partition. See N.Y. Real Prop. Actions & Proc. Law § 901 for the authority to bring partition actions: https://www.nysenate.gov/legislation/laws/RPAPL/901
Helpful Hints
- Before filing, try negotiation or mediation. Courts often favor settlement and a buyout may save time and cost.
- Gather key documents: deed(s), mortgage statements, tax bills, surveys, leases, receipts for improvements, and any written agreements among owners.
- Get a professional appraisal if value or fair division is disputed. Appraisals strengthen your position in court or settlement talks.
- Ask about temporary orders. You can ask the court for temporary relief (e.g., an accounting of rents, a temporary injunction preventing sale or eviction) early in the case if immediate harms exist.
- Include known lienholders in the lawsuit. Failing to name mortgagees or recorded lienholders can delay or complicate final distribution.
- Expect an accounting stage. Be prepared to document expenses, contributions, and any payments you made on the property to claim credit.
- Consider hiring a New York real estate attorney. Partition law involves property, procedural, and accounting issues; an attorney helps protect your rights and deadlines.
If you want to review the statutory language for partition actions, see N.Y. Real Prop. Actions & Proc. Law § 901 at: https://www.nysenate.gov/legislation/laws/RPAPL/901
Final note: This article explains the general New York process for partition actions. It does not replace advice from a lawyer who can evaluate the facts, documents, and possible defenses in your situation.