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In New York, a partition action can take between 1.5 to 2 years to get to trial. The period depends on various factors, such as the complexity of the case, the number of parties, and the court’s case load. Most partition actions, however, are settled and do not go through trial.
What is Partition?
Partition is a lawsuit filed by a co-owner against the other co-owners to divide or sell property that is jointly owned. If the property is capable of physical division, the property will be physically divided among the co-owners. More often than not, however, the property cannot be physically divided. In such case, the property will be sold, and the proceeds will be divided among the co-owners.
In New York, a co-owner can live on the property rent-free because a co-owner has a right to possess the jointly owned property. In fact, this is one of the reasons why partition actions take place.
Most jointly owned properties in New York are inherited. When the heirs inherit the property (usually from their parents), one of the heirs (usually the heir who took care of the parent) is already living in the property rent-free. Therefore, the other heirs (who usually live in other states) do not derive any benefit from the inherited property because one of the heirs is living in it rent-free and does not want to vacate. In this case, a partition action is almost always filed. The partition action forces the sale of the property and the division of the net sales proceeds among the co-heirs or co-owners.
Uniform Partition of Heirs Property Act (UPHPA)
In New York, the UPHPA was passed to protect heirs from the forced sale of their property at below market value to outside buyers who wish to take advantage of the acrimonious relationship among the co-heirs. Prior to the passage of the law, scrupulous real estate investors would purchase the interest of a co-heir at a low price and then file an action for partition, forcing the sale of the property in a public auction at a price below fair market value.
Under the UPHPA, if a co-owner wishes to sell his interest, the other co-owners have a right of first refusal to purchase the property at a fair market value. First, the co-owners must bargain in good faith regarding the sale of the property in a mediation conference. If this fails, the court is required to make a valuation of the inherited property in an evidentiary hearing. Based on this value, the property is offered to the defendant co-owners, who are given the right to purchase the share of the co-owner seeking partition. If the defendants do not exercise this right, property may be sold in open market (and not in auction) at fair market value.
This revised procedure prevents third-party buyers from taking advantage of co-owners who want to immediately sell the property and would sell it at a lower price.
Settlement
Most partition actions almost always results to a sale of the property. The court will not force co-owners to remain co-owners when one no longer wishes to be a co-owner and wants to sell the property. For this reason, once a partition action is filed, the other co-owners, especially after receiving advice from legal counsel, know they have no choice but to sell the property. They cannot continue to stay in the property rent-free.
The longer the partition action is dragged, the lower will be the home equity value of the co-owners. Why? Because attorney fees of all parties will be subtracted from the sales proceeds before the net proceeds are distributed to the other co-owners. For this reason, instead of dragging the partition case on and going through trial, it is to the benefit of all co-owners to simply agree to sell the property and divide the proceeds at the soonest possible time. Otherwise, all the proceeds might just go to the lawyers.
In summary, a partition action in New York can take 1.5 to 2 years to get to trial. However, most partition actions are settled, and for this reason, it can be resolved sooner than this period. If you own property with someone else and would like to file an action for partition, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
