Petition to Force the Sale of a House in New York City

A petition for partition is filed by a joint owner who does not want to be a co-owner anymore. It comes up most often with inherited property, when one co-owner does not live on the property or is not paying the mortgage, when co-owners were once a couple and no longer are, when people who bought as business partners want to part ways, or simply when the co-owners are no longer on speaking terms. In New York, a petition for partition is filed in accordance with Real Property Actions & Proceedings Law (RPAPL) § 901. Other states have their own partition statutes, which may be similar.

Options before filing the petition for partition

A co-owner who is thinking of filing has three options to weigh.

Negotiate a buy-out with the other co-owners

Talk to your co-owners and see whether they are willing to buy out your share. This requires an appraisal of the property so that each owner’s share can be computed.

Sell your share to a non-owner

You can sell your interest to a third party, but this option is rarely used because few people want to co-own property with a stranger. Real estate investors used to buy the share of a co-owner or co-heir and then file a petition for partition, which let the investor buy the house at auction for a price below market value. Since New York enacted the Uniform Partition of Heirs Property Act, that practice has been minimized.

File a petition with the court to force the sale

A partition lawsuit should be the action of last resort, because the legal fees and expenses can eat up your equity in the home. In practice, though, once a petition is filed the parties usually become more willing to resolve the matter by selling the property, to avoid protracted litigation and expensive attorney’s fees.

Voluntary sale of the house

Before filing, try to reach an agreement with the other co-owners about the property. They could buy out your share, or all of the co-owners could agree to sell the property at a particular price. A voluntary agreement eliminates the need for expensive partition litigation.

Demand letter to compel negotiation

If the other co-owners do not take the issue seriously, a lawyer can send a demand letter requesting the sale of the property. You can send a demand letter yourself, but a letter from an attorney shows that you are serious. In most cases that is enough, because going to court means expense for everyone and a court will rarely deny a partition lawsuit filed by a co-owner.

If the co-owners still ignore you, document every effort you made to reach an amicable resolution. You may be able to recover attorney’s fees in the partition action if you prove that your co-owners were obstructive in your efforts to dispose of your share of the house amicably. Schorner v. Schorner, 128 Misc.2d 415 (1985).

Filing a petition for partition

Filing a partition lawsuit should be a last resort because of the legal fees and other expenses. Once a lawsuit is filed, the parties usually settle to avoid protracted litigation. Pursuing the case to a judgment and court-ordered sale is rarely wise, for two reasons: the legal fees will eat up the owners’ equity, and a property sold at auction fetches a lower price than one sold through a broker on the open market.

Expenses you can claim as reimbursement

In a partition action you can claim reimbursement for expenses you paid on the property, such as real property taxes and home improvements, as long as they are substantiated with receipts. You can also recover attorney’s fees, which are usually taken from the proceeds when the property is sold. That is what erodes everyone’s equity: once the property is sold and any mortgage is paid, attorney’s fees may have to be deducted from the proceeds before they are distributed, leaving each co-owner with a smaller share. It is in every co-owner’s interest to resolve a partition dispute through a voluntary sale.

Defenses to a petition to compel the sale of the house

A co-owner opposing a partition sale has two principal defenses.

The property can be divided physically

Where physical division is possible, the court may prefer dividing the property among the co-owners over selling it. That usually applies to land. A co-owned house is difficult, if not impossible, to divide, so a forced sale is usually ordered.

The co-owner who filed has unclean hands

In Kopsidas v. Krokos, 294 A.D.2d 406 (2002), the court held that a partition action may be dismissed when the plaintiff comes to court with unclean hands. That requires immoral or unconscionable conduct by the complaining party, and even then only where the conduct is directly related to the subject matter of the litigation and the party invoking the doctrine was injured by it.

No partition for property bought as a married couple

Property held as tenants by the entirety, which is how a married couple ordinarily takes title when they buy together, cannot be partitioned through a partition sale. It can be divided in a post-nuptial agreement, a legal separation agreement or a divorce settlement. When the co-owners are tenants in common, the petition can be filed by a joint owner or tenant in common.

Uniform Partition of Heirs Property Act (UPHPA)

The UPHPA took effect on December 6, 2019. Property classified as “heirs property” must go through a different process from an ordinary partition sale. The co-owners are required to bargain in good faith about the sale of the property in a mediation conference. If that fails, the court must fix the value of the inherited property at an evidentiary hearing. Based on that value, the defendant co-owners are given the right to purchase the share of the co-owner seeking partition. If they do not exercise that right, the property may be sold on the open market, not at auction, at fair market value. Our page on RPAPL 993 walks through the statute’s deadlines and the buyout right in detail, and our pages on the forced sale of inherited property and on what a partition attorney does cover related ground.

Talk to us

A petition for partition involves some initial expense, but it can be unavoidable when co-owners cannot agree among themselves. If you are considering it, consult a lawyer early. Usually a demand letter is enough to start negotiations; at most, a partition action compels the parties to sit down and work out a sale of the property and a division of the proceeds. Call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected].