Attorney for Partition of Real Property in New York

Do you own a property with someone else? Do you wish to sell and the other person doesn't? Or maybe the other person wants to buy you out, but for an unfairly low price.

You can't sell, you can't refinance, you can't move forward. The property just sits there.

Meanwhile, tensions rise and opportunities pass you by.

Forcing a sale through the court may be your only option. Once the judge issues an order, you will not need the other person's permission to sell.

Here's how the process works. We file a petition in court. The court appoints a referee. The referee sells the property on the market. The court will then issue another order. The new order will direct the referee how to split up the proceeds of the sale.

Once the court proceeding goes through, you don't need everyone to agree. That's the whole point. The lawsuit will end the deadlock. You will no longer be stuck in an impossible situation.

If you are trapped owning a property with someone and need to move forward, we can help you understand your rights and options.

You can contact us by phone at 212-233-1233 or by email at [email protected].

What a Partition Action Is

A partition action is a lawsuit that allows any co-owner of real estate to force a division or sale of the property. The right is statutory in New York and comes from Article 9 of the Real Property Actions and Proceedings Law (RPAPL). The premise is straightforward: no one can be forced to remain a co-owner against their will. If you and another person hold title to the same property and you cannot agree on how to use it, sell it, or refinance it, the court will step in and resolve the deadlock.

Partition is available to all common forms of co-ownership – tenants in common, joint tenants, and (in limited circumstances) tenants by the entirety. It is most commonly used in inherited property situations where siblings or other heirs received the property together and cannot agree on what to do with it. It is also used in non-marital relationships that have broken down, in business partnerships involving real estate, and in any other situation where co-owners are in conflict.

Partition by Sale Versus Partition in Kind

New York courts have two basic forms of relief in a partition case. Partition in kind means physically dividing the property between the co-owners – for example, splitting a large parcel of land into two lots. Partition by sale means the property is sold and the proceeds are divided according to the parties' ownership interests.

The default preference is partition in kind, but in practice that is only feasible for raw land that can be divided without losing significant value. A house, a brownstone, a commercial building, or a condominium unit cannot be physically divided in any meaningful way. For those properties, partition by sale is the only realistic option. The court will order a sale when partition in kind would result in great prejudice to the owners – which is almost always the case for improved residential and commercial property.

How the Case Proceeds

A partition action begins with a summons and complaint filed in Supreme Court of the county where the property is located. The complaint identifies the property, the co-owners, the share each holds, any liens or encumbrances, and the relief sought. All co-owners and lienholders must be named. The complaint is filed along with a notice of pendency (a lis pendens) that goes on the property's title to alert third parties that the property is in litigation.

After service, the defendants answer. Often the defendants do not really contest the right to partition – they may want a sale themselves or simply be unable to fight it. The contested issues are typically the share each owner is entitled to, credits for payments made, accounting for use and occupancy, and the mechanics of the sale.

Once liability is established, the court appoints a referee to compute the ownership interests, accounts, and credits. The referee's report is submitted to the court for confirmation. The court then issues an interlocutory judgment directing sale, and a separate sale referee is appointed to market and sell the property.

The Sale Process

The court-appointed sale referee retains a real estate broker (often with input from the parties), prepares the property for sale, and either lists it on the open market or conducts a public auction depending on the order. Open-market sales generally produce higher prices and are now the more common approach. The sale is held subject to court confirmation – the referee reports back the highest bid and the court formally approves the sale before closing.

At closing, the proceeds go through the referee's account. Liens are paid off, sale costs and attorney fees are paid, and the net proceeds are then distributed to the co-owners according to the court's final judgment of partition. The whole timeline from filing to closing typically runs from six months to over a year, depending on the property, the cooperation of the parties, and the calendar of the court.

Accounting and Credits

One of the most contested parts of a partition case is the accounting between co-owners. New York law gives each co-owner certain rights against the others.

• Credit for mortgage payments, taxes, and insurance. An owner who has been paying carrying costs on the property is entitled to credit for the other owners' shares of those expenses.
• Credit for capital improvements. An owner who paid for substantial improvements that increased the property's value may be entitled to credit. Routine maintenance generally does not qualify.
• Charge for sole occupancy. An owner who lived in the property alone may be charged the fair rental value of the other owners' shares of the property if the other owners were excluded.
• Charge for waste. An owner who damaged the property or allowed it to deteriorate may be charged for diminished value.

These credits and charges are calculated by the accounting referee and incorporated into the judgment. They can shift the net distribution significantly. A 50/50 owner who has been paying the mortgage alone for years may end up with substantially more than 50 percent of the sale proceeds.

Defenses and Counterarguments

Defendants in a partition action have limited grounds to block the sale itself, but they have meaningful arguments on the accounting side. Common defenses include: challenging the plaintiff's ownership interest, asserting credits for the defendant's own payments and improvements, requesting partition in kind rather than partition by sale, and asserting equitable defenses such as estoppel where the plaintiff promised not to seek partition.

One specific issue that comes up in New York is the homestead question. When the property is the defendant's primary residence and the defendant has lived there for many years, courts will sometimes try to find a way to allow the defendant to buy out the plaintiff's interest rather than forcing a sale. This is not a guaranteed result, but a well-prepared defendant can sometimes negotiate a buyout in lieu of sale.

Partition After Inheritance

The most common scenario in our practice is partition of property that was inherited by siblings. The parent died, the property passed equally to the children, and the children now disagree about what to do. One child wants to keep the house. Another wants to sell and take the cash. A third moved into the house years ago and refuses to leave.

Partition is the procedural answer. But these cases also have an emotional dimension – they involve childhood homes, family memories, and disputes that have built up over years. We try to handle them firmly on the law while leaving space for settlement. Most partition cases settle once the parties see that the process is going forward. Buyouts, structured sales, and creative settlements are common outcomes.

Costs and Fees

Partition cases have meaningful costs. Court filing fees, referee fees, broker commissions, attorney fees, and title clearance costs all come out of the sale proceeds. The court can award attorney fees from the proceeds when the action benefits all the owners. Where one owner takes an unreasonably hard position that drives up the cost of the case, the court can shift more of the fees to that owner.

Talk to a Partition Attorney

If you are stuck owning property with someone who will not sell, will not refinance, will not negotiate, and will not move forward, a partition action may be the way out. We handle partition cases throughout New York, including inherited property, broken business partnerships, and post-relationship disputes.