Inherited and Co-Owned House Disputes in New York: Partition, Surrogate's Court, or a Buyout?

Most fights over an inherited or jointly owned house in New York come down to the same three facts. One owner is living in the house. The others want it sold or want to be paid for their share. Nobody can agree on a number. New York law gives you three ways out: a partition action in Supreme Court, a proceeding in Surrogate's Court, or a negotiated buyout. This page explains how we choose among them for a given set of facts, what the accounting looks like in dollars, and how long each route tends to take in the counties where we practice.

If your dispute is with a tenant, a lender, a buyer, or a neighbor, it is not a co-ownership dispute and a different body of law applies. See the short section near the end of this page for where to go.

First Question: Does the Person in the House Own a Share?

Everything turns on this. When a New York resident dies, title to real property passes at the moment of death to the people entitled to it: the beneficiaries named in the will or, if there is no will, the distributees under EPTL 4-1.1. A surviving spouse and children, or children alone, take as tenants in common. The executor or administrator does not own the house. The fiduciary holds a power over it, including the power to sell it if that is needed to pay debts and expenses (EPTL 11-1.1; SCPA Article 19 for administrators and for fiduciaries whose authority is limited).

Two very different situations follow from that rule.

• The occupant is a co-owner: a sibling who inherited an equal share, or a friend or partner on the deed. You cannot evict a co-owner. There is no landlord-tenant relationship between tenants in common, so a housing court proceeding under RPAPL Article 7 will be dismissed. The tools are partition, an accounting, or a buyout.
• The occupant has no ownership share: a caretaker, a late-life companion, a grandchild, or a child the will left out. That person is a licensee at best. The fiduciary can bring a licensee holdover under RPAPL 713(7) after a ten-day notice to quit, or an ejectment action in Supreme Court, or seek turnover of the property in Surrogate's Court under SCPA 2103 and 2104.

In either case, self-help is off the table. Changing the locks or removing a person's belongings from a dwelling they have occupied for thirty days or more is a misdemeanor under RPAPL 768, and the occupant can recover treble damages under RPAPL 853. We see heirs lose the moral high ground, and money, by locking a sibling out before the lawsuit is filed.

Option One: A Partition Action in Supreme Court

RPAPL 901 gives any tenant in common or joint tenant the right to bring an action for partition. The action is filed in the Supreme Court of the county where the house sits, and a notice of pendency is recorded under CPLR 6501 so that no one can sell or refinance around the lawsuit.

The statute favors physical division of the land. A single-family house in Queens or a two-family in Brooklyn cannot be cut in half, so the court enters a judgment directing a sale under RPAPL 915, which applies when partition in kind cannot be made without great prejudice to the owners. A referee is appointed to conduct the sale, usually at public auction, though the parties often agree to a private listing with a broker because it brings a higher price.

The part of the case that matters most is the accounting under RPAPL 945. Before the proceeds are split, the court adjusts each owner's share for what that owner paid and what that owner received:

• Credits for carrying costs: property taxes, mortgage payments, homeowner's insurance, and necessary repairs paid by one owner are reimbursed from the other owners' shares.
• Credits for improvements: an owner who put on a new roof or finished a basement is credited the amount by which the improvement increased the sale price, not the amount spent.
• Charges for exclusive occupancy: New York follows the rule that a co-owner in sole possession does not owe rent to the others unless there was an ouster. The exception matters: when the occupying owner asks for credits, courts routinely offset the fair rental value of the occupancy against those credits. An owner who was refused a key, or told to stay out, can also show ouster and claim use and occupancy directly.
• Costs of the action: the court can direct that the referee's fees, broker's commission, and in some cases attorneys' fees for work that benefited all owners be paid from the proceeds before distribution (RPAPL 981).

For the procedure and defenses in more detail, see our page on partition actions in New York.

A Worked Accounting Example

The following is a hypothetical, not a report of an actual matter. The numbers are chosen to show how the credits and offsets interact.

A mother dies without a will in Nassau County. Her two children, Ana and Ben, each inherit a one-half share of her house. Ana moves in. Over three years she pays $36,000 in property taxes, $6,000 in insurance, and $18,000 for a new roof that an appraiser says added $12,000 to the value. Ben pays nothing and receives nothing. The fair rental value of the house is $3,500 per month, or $126,000 over the three years. Ben sues for partition. The house sells for $900,000. After a 5 percent commission ($45,000) and $15,000 in referee and closing costs, $840,000 is left to divide.

Before any adjustment, each sibling's share is $420,000.

• Ana's credits: taxes and insurance of $42,000, of which Ben's half is $21,000, plus the $12,000 value added by the roof, of which Ben's half is $6,000. Total owed to Ana: $27,000.
• Ben's offset: if the court charges Ana for exclusive occupancy because she asked for credits, Ben is entitled to his half of the rental value, $63,000.

If no occupancy charge is applied, Ana receives $447,000 and Ben receives $393,000. If the occupancy charge is applied, Ana receives $384,000 and Ben receives $456,000. The swing is $126,000 on a single legal question. That is why the sibling living in the house is often better off not claiming carrying costs at all, and why the sibling locked out should document every request for access. It is also why most of these cases settle once both sides have run the numbers.

Option Two: A Proceeding in Surrogate's Court

Surrogate's Court is the right forum when the problem is the estate, not the co-ownership. It is usually the better choice in three situations.

• The estate has not been administered: no executor or administrator has been appointed, so no one has authority to sign a deed or deal with the mortgage. Partition can technically proceed because title vested at death, but a Supreme Court judge will often require the fiduciary to be joined or will wait for letters to issue. Getting letters of administration first, then selling under the fiduciary's power, is often faster than a partition action.
• The occupant is not an owner: a turnover proceeding under SCPA 2103 lets the fiduciary recover possession of estate property from a person who holds it without right. The Surrogate can also direct an accounting of rents the occupant collected.
• The ownership itself is disputed: if one child claims the house under a will that the others say was procured by undue influence, the issue is decided through objections to probate (SCPA 1404 examinations, then objections under SCPA 1410) on the grounds of due execution under EPTL 3-2.1, testamentary capacity, undue influence, fraud, or forgery. A partition action would be stayed until the Surrogate decides who owns what. See contesting a will in New York.

A related situation is a deed signed before death, where a parent transferred the house to one child, often keeping a life estate. That challenge is brought in Supreme Court or Surrogate's Court as an action to set aside the deed for lack of capacity, undue influence, fraud, or forgery. The limitations periods are precise. A claim based on undue influence, incapacity, or a constructive trust falls under the six-year period in CPLR 213(1). A claim based on fraud runs the greater of six years from the transfer or two years from when the fraud was or could reasonably have been discovered (CPLR 213(8) and 203(g)). A deed will not be undone because the gift was unequal. You must show a defect in the parent's intent or in the execution.

Our inheritance dispute and turnover proceeding pages cover these in more detail.

Option Three: A Negotiated Buyout

A buyout is the fastest and cheapest route when one owner wants to keep the house and can finance it. The mechanics are simple: agree on a value, apply the same credits and offsets a court would apply, and have the staying owner refinance or pay cash for the others' shares. Done well, it closes in sixty to ninety days.

The points that need to be settled in writing are the appraisal method (one appraiser, or two with a third to break a tie), the date the value is fixed, who pays transfer taxes, how the existing mortgage is handled, a deadline for financing with a fallback to listing the house if the deadline passes, and a release of all claims among the owners. A buyout agreement signed before anyone files suit avoids the notice of pendency, the referee's fee, and the auction discount. For the two sides of that negotiation, see offering a buyout and responding to a buyout offer.

How We Choose Among the Three

Here is the same fact pattern, a house inherited by siblings with one sibling in residence, run through each option.

• Partition fits when: the estate is closed or nearly closed, the occupant is a co-owner who refuses to sell or to pay, and the non-resident owners want cash rather than the house. It is the only option that forces a result without the occupant's consent.
• Surrogate's Court fits when: no fiduciary has been appointed, the occupant has no ownership share, the will or a pre-death deed is being challenged, or a fiduciary is mishandling the property. It resolves the estate question that partition cannot.
• A buyout fits when: one owner can qualify for a mortgage on the house, the parties can agree on an appraiser, and nobody disputes who owns what. It is the choice we recommend first in nearly every case, because the accounting rules give both sides a reason to settle.

In practice the options are combined. A partition complaint is filed to start the clock and record the notice of pendency, and the case settles as a buyout once the accounting is exchanged. Or letters of administration are obtained, the fiduciary lists the house, and the occupying sibling is given a right of first refusal at the appraised value.

Timelines by County

The ranges below reflect our experience with contested partition actions and are not predictions for any particular case. An uncontested case, or one that settles after the accounting is exchanged, is faster in every county.

• Kings County (Brooklyn): Supreme Court calendars are heavy. From filing to a judgment of sale, a contested partition commonly takes 18 to 30 months. Settlement conferences before the assigned justice or a court attorney referee are common and effective.
• Queens County: similar to Kings. Motion practice over the accounting is where most of the time goes. Expect 15 to 30 months if the case does not settle.
• Nassau County: generally faster. A contested partition can reach a judgment of sale in 12 to 20 months, and referees in Nassau are accustomed to approving broker listings instead of auctions.
• Suffolk County: comparable to Nassau, with the added issue that many disputed houses are seasonal or second homes, which complicates the occupancy charge and the valuation date. Plan on 12 to 24 months.

A Surrogate's Court turnover proceeding against a non-owner occupant is often faster than any of these, frequently six to twelve months, because the issue is narrower. A licensee holdover under RPAPL 713 outside New York City can be faster still, though inside the city housing court delays can push it past a year.

Common Questions

Can I evict my brother from the house we inherited in New York?

Not through housing court. If he inherited a share, he is a co-owner, and co-owners cannot be evicted by one another. The remedy is a partition action, where the court orders the house sold and adjusts the proceeds for what each of you paid and for his exclusive use. If he did not inherit a share, the executor or administrator can proceed against him as a licensee or through a Surrogate's Court turnover proceeding.

Does my sister have to pay rent while she lives in our parents' house?

Usually not, unless she has kept you out. New York does not charge a co-owner for living in the property absent an ouster. But if she asks the court to reimburse her for taxes and repairs, the court can offset the rental value of her occupancy against those credits. A written demand for access that she refuses can establish ouster and make her liable for your share of the rental value from that date.

Can the executor sell the house without the beneficiaries' consent?

If the will gives the executor a power of sale, generally yes, subject to the fiduciary's duty to get a fair price. An administrator without a will, or a fiduciary without an express power, may need court authority under SCPA Article 19. Beneficiaries who object can ask the Surrogate to review the sale, and a beneficiary who wants the house can often buy it from the estate at appraised value.

How much does a partition action cost in New York?

Costs depend on how hard the other side fights. The filing fee and notice of pendency are modest. The expensive parts are the referee's fee, the broker's commission or auction costs, and attorneys' fees through the accounting phase. The court can order some of these paid from the sale proceeds before distribution. A buyout avoids most of them.

Can I stop a partition action?

Rarely on the merits, because the right to partition is nearly absolute. You can delay it by challenging the plaintiff's title, by showing the estate still needs the house to pay debts, or by raising a written agreement among the owners not to partition. The practical way to stop it is to buy out the other owners before the judgment of sale.

Not a Co-Ownership Dispute?

• A tenant who will not pay or leave: landlord representation.
• Getting into a house after a death to secure it or retrieve documents: access to a house after death.
• A neighbor's fence, driveway, or structure on your land: adverse possession in New York.
• Two unrelated owners on one deed with no estate involved: a house in two names.

Talk to a New York Attorney About an Inherited or Co-Owned House

If you own a house with relatives or former partners and cannot agree on what to do with it, the Law Offices of Albert Goodwin can help you decide between a partition action, a Surrogate's Court proceeding, and a buyout, and can run the accounting before you choose. We have offices in Manhattan, Brooklyn, and Queens and handle partition and estate litigation in Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, and Westchester Counties. Call 212-233-1233 or email [email protected].

Written and reviewed by Albert Goodwin, Esq., an attorney admitted to practice in New York who represents heirs, co-owners, and fiduciaries in partition actions and Surrogate's Court proceedings. This page is general legal information for New York and is not legal advice for your situation.