New York — Starting a Partition Action to Divide or Sell Real Estate

Short overview: When co‑owners of real property cannot agree about use, possession, sale, or division, any co‑owner can ask the New York Supreme Court to force a division of the property (partition in kind) or a sale and distribution of the proceeds (partition by sale). Partition actions are governed by New York’s Real Property Actions and Proceedings Law (RPAPL). See RPAPL §901 for the statutory authority to bring a partition action: https://www.nysenate.gov/legislation/laws/RPAPL/901.

1. Who may bring the action and where it is filed

– Any co‑owner of the property (for example, a tenant in common) can commence a partition action.

– The action is filed in the New York Supreme Court in the county where the property is located. The complaint must name all other owners and anyone with a recorded interest (mortgagees, lienholders) so the court can determine rights and distribute proceeds correctly.

2. Basic documents you will prepare and file

• Summons and complaint: The complaint should identify the property by legal description or street address, list all owners and their claimed shares (if known), describe any mortgages or liens you know about, and request partition — either a physical division or a sale and distribution of proceeds.
• Lis pendens or notice to protect the property interest: Filing a lis pendens or otherwise giving notice preserves claimants’ interests and alerts potential purchasers that the property is subject to litigation.
• Service of process: All titled owners and persons with recorded interests must be served. If you cannot find an owner, the court may allow service by publication for unknown or nonresident parties.

3. What the court decides and how the court carries out partition

– The court will decide whether partition in kind (physically dividing the land) is practical. If division is impracticable or would materially prejudice some owners, the court will order the property sold and proceeds divided according to the owners’ interests.

– The court generally appoints a referee, master, or commissioner to handle the physical division or to manage the sale and distribution of proceeds. The appraiser or referee conducts the sale, often at public auction unless the court orders another sale method.

– Liens, mortgages, and prior recorded interests are paid from sale proceeds before distribution to owners. The court will also account for rents, profits, and contributions to the property (for example, improvements paid for by one co‑owner) as part of the distribution.

4. Typical timeline and steps after filing

1. File summons and complaint in Supreme Court (county where property is located).
2. Serve all parties and record a lis pendens if appropriate.
3. Defendants answer or contest; the court may set conferences, direct discovery, or order mediation.
4. If the court orders partition, it typically appoints a referee to value and divide or sell the property.
5. Sale is conducted according to the court’s directions; proceeds pay liens, costs, and are distributed to owners according to interest and any court‑ordered adjustments.

5. Common legal and practical issues to expect

• Title complications: missing owners, unrecorded interests, heirs, or life estates can complicate party joinder and distribution.
• Mortgage holders and lienholders must be joined or their rights addressed before distribution.
• Costs: court costs, referee fees, advertising, and attorneys’ fees are usually paid from sale proceeds; in some cases the court may allocate attorney fees among parties based on conduct or contract.
• Buyouts: sometimes a co‑owner will buy out others’ shares to avoid sale; a negotiated buyout can save time and expense.

6. When the court may decline an immediate sale

The court has discretion. If partition in kind is feasible and fair, the court may order physical division. If dividing the property would be impractical or would destroy value, the court typically orders a sale. The court also considers equitable factors — for example, whether a co‑owner’s conduct warrants different treatment of costs or distribution.

7. Where to find statutory text and court resources

– RPAPL §901: authority to bring partition actions: https://www.nysenate.gov/legislation/laws/RPAPL/901

– New York State Unified Court System (self‑help and court procedure information): https://www.nycourts.gov/courthelp/

Helpful Hints

• Before filing, try negotiation or mediation. Courts often encourage settlement and mediation can save time and money.
• Get a title search early. Identify mortgages, liens, and other encumbrances so you can name necessary parties in the complaint.
• Obtain a current survey or plat if possible. A survey helps determine whether physical division is feasible.
• Document contributions. Keep receipts for improvements, mortgage payments, taxes, insurance, or repairs you paid — the court may adjust distributions accordingly.
• Consider a buyout offer. One owner purchasing others’ interests can avoid sale costs and preserve the property for remaining owners.
• Preserve the property. If squatters or deteriorating conditions are a risk, take lawful steps to protect the asset (lock changes, insurance, etc.).
• Expect costs from sale proceeds. Advertising, referee fees, recording, and court costs come out of the proceeds before owners receive their shares.
• Join mortgagees and lienholders early. Failure to include secured creditors can complicate distribution or lead to additional litigation.
• If one owner lives on the property, the court may consider equitable adjustments (credit/deduction) for occupancy, rent, or improvements.