FAQ — Partition of Jointly Owned Family Land under New York Law
Short answer: In New York, a co-owner can ask a court to divide jointly owned real property or order its sale by bringing a partition action in the Supreme Court (the state trial court). The court will try to divide the property physically (partition in kind) when possible. If a fair division is impracticable or would prejudice the owners, the court can order a sale and divide the proceeds among the owners according to their ownership shares. See the Real Property Actions and Proceedings Law (RPAPL), Article 9, for the governing rules.
Detailed answer — how partition actions work in New York
This section explains who may start a partition action, the likely court process, possible outcomes, and important practical issues families commonly encounter.
1. Who may bring a partition action?
Any person with an ownership interest in real property may maintain a partition action in New York. That includes joint tenants, tenants in common, heirs who inherited an undivided interest, and devisees who own a share. The action must be brought in the Supreme Court in the county where the property is located.
Relevant statute: RPAPL Article 9 (partition law) — see, for example, RPAPL § 901. RPAPL § 901.
2. Who must be joined in the case?
All persons who have an interest in the property should be joined as parties: co-owners, recorded lienholders (mortgagees), judgment creditors who have properly recorded liens, and anyone claiming an ownership interest. Minors or legally incompetent persons require appointment of a guardian or guardian ad litem to protect their interests. If someone is out of state, the court has procedures for service of process so they are included.
3. Partition in kind vs. partition by sale
The court prefers a partition in kind — physically dividing the land so each owner gets a portion. However, when a fair physical division would be impracticable, would substantially reduce value, or would prejudice the owners, the court may order a sale of the entire property and a division of proceeds among owners according to their shares. The court can appoint a referee to supervise the division or sale and handle details such as surveying, appraisal, advertisement, and closing.
See RPAPL for the court’s authority to order partition and sale. RPAPL § 901 and the surrounding sections in Article 9 explain the procedures and remedies.
4. Typical steps in the partition process
- Consult a New York real property attorney (recommended) and gather documentation: deeds, title report, mortgage statements, tax bills, surveys, and a list of all possible owners and lienholders.
- File a complaint for partition in the Supreme Court of the county where the property sits. The complaint identifies the property, lists the owners, and asks the court for partition in kind or, if necessary, sale.
- Serve all necessary parties. The court will require service on all potential claimants and lienholders.
- Discovery and pretrial procedures may follow: appraisals, surveys, and inspections. The court may order an appraisal and/or name a referee.
- The court will determine whether partition in kind is practical. If not, it will order sale, appoint a referee or special master to handle the sale, and distribute proceeds according to ownership shares, after paying liens, costs, and any court-allowed expenses or attorney’s fees.
5. Costs, timelines, and attorney’s fees
Partition actions can take months or sometimes years depending on complexity, disputes over ownership, the need for title clearing, or disagreement over sale terms. The court can assess costs of sale, referee fees, and in some cases attorney’s fees against the proceeds. If one co-owner asks that another be bought out, the court can approve a buyout arrangement if the parties agree or when the court fashions equitable relief.
6. Special issues with heirs, minors, and many co-owners
When property is owned by multiple siblings and their children, ownership shares may vary (for example, some may hold per stirpes interests). The court must identify each party’s legal interest. Minors require protective representation. A large number of owners increases the complexity: locating all parties, resolving competing claims, and determining priorities for lienholders all add time and cost.
7. Alternatives to court
Before filing, consider negotiation, mediation, or a buyout agreement. Mediation can preserve family relationships and reduce legal costs. If one co-owner can purchase the interests of others at a mutually acceptable price, that avoids court sale. If parties agree to terms, the court can generally approve a consensual partition or sale with minimal litigation.
8. Practical consequences and tax considerations
Sale proceeds may be taxable. Capital gains and basis calculations depend on how the property was acquired (purchase, gift, or inheritance). Consider consulting both a New York real property attorney and a tax advisor before completing a sale.
Helpful Hints
- Collect and organize title documents (deeds, probate papers, recorded instruments) before you speak with an attorney.
- Identify every person with a possible interest (heirs, devisees, spouse claims, lienholders). Missing parties can delay or invalidate a partition.
- Order a recent title search or abstract to find mortgages, tax liens, or judgments that attach to the property.
- Get one or more appraisals early to establish fair market value and to help determine whether a division in kind is feasible.
- Consider mediation or a written buyout offer to other owners — court actions are usually slower and costlier.
- Expect the court to appoint a referee for complex sales or partitions; the referee will handle sale logistics and report back to the court.
- If minors or incapacitated parties are involved, ask about guardian or guardian ad litem requirements so their interests are protected.
- Consult a New York attorney experienced in real property and partition law early to map strategy and reduce surprises.
Key legal references
New York’s partition law is in RPAPL Article 9. Useful links:
- RPAPL (Real Property Actions and Proceedings Law) main page: https://www.nysenate.gov/legislation/laws/RPAPL
- RPAPL § 901 (authority to maintain action for partition): https://www.nysenate.gov/legislation/laws/RPAPL/901
Disclaimer: This article explains general principles of New York partition law for educational purposes only. It is not legal advice. You should consult a licensed New York attorney about the specific facts of your situation before taking legal action.