New York Partition Lawyer

When two or more people own real estate together in New York and are unable to agree on how to use, manage, or sell the property, disputes can arise that are difficult to resolve without court intervention. A partition action offers a legal process to break the deadlock. Under New York’s Real Property Actions and Proceedings Law (RPAPL) Article 9, a co-owner can ask the court to divide the property or order it sold, with the proceeds distributed among the owners. Partition actions often come from contentious situations, including disagreements among family members who inherit property, business partners who invested together, or former couples who no longer wish to share ownership. Because partition cases can involve complex financial and emotional issues, it is important to work with an experienced New York partition lawyer who can help you navigate the process, protect your rights, and pursue a fair and efficient resolution.

What is a Partition Action in New York?

A partition action is a formal lawsuit initiated in the New York State Supreme Court with the fundamental objective of terminating a co-ownership relationship in real property. This legal mechanism allows one or more co-owners to petition the court to either physically divide the property among the owners (known as partition in kind) or, more commonly, to order the sale of the property and the subsequent division of the net proceeds (partition by sale). Article 9 of the RPAPL serves as the governing legal framework for partition actions, meticulously outlining the eligibility criteria for filing, the mandatory procedural steps, and the principles governing the division of the property or its sale proceeds.

Who Can File a Partition Action?

Section 901 of the Real Property Actions and Proceedings Law (RPAPL) states that any person who holds a legal possessory interest in real property as a tenant in common or joint tenant has the right to bring a partition action.

• A possessory interest means the right to occupy, use, and control the property now, rather than a future or potential right that has not yet taken effect.
• A tenant in common is a co-owner who holds an individual share of the property, which can be unequal, and who may sell or transfer that share independently.
• A joint tenant is a co-owner who shares equal ownership with the other joint tenants and typically has a right of survivorship, meaning their share automatically passes to the other joint tenants upon death.

Importantly, even someone who owns a minority share can seek partition as long as they hold a present, enforceable right to possess the property. Common situations that lead to partition actions include:

• Inherited Property: When a decedent’s will or the laws of intestate succession result in multiple heirs inheriting the same real property.
• Joint Purchases Without Written Agreements: Individuals who purchase property together without a comprehensive agreement outlining their rights and responsibilities.
• Investment Arrangements: Co-ownership arising from real estate investment ventures where disagreements surface.

It is important to note that property held under a tenancy by the entirety, a specific form of ownership exclusively for legally married couples, cannot be subject to partition during the marriage. This unique form of ownership includes a right of survivorship, meaning the surviving spouse automatically inherits the entire property. However, upon divorce or the death of one spouse, a former tenancy by the entirety typically transforms into a tenancy in common, thereby making a partition action a potential legal remedy.

What Types of Property Can Be Partitioned?

Partition actions in New York can encompass a diverse range of real property types, including but not limited to:

• Residential Property: This includes single-family homes, condominiums, and cooperative apartments (although the specific nature of cooperative ownership may introduce additional complexities).
• Commercial Real Estate: Such as office buildings, retail spaces, and industrial properties.
• Vacant or Undeveloped Land: Parcels of land that have not been improved.

As previously mentioned, property owned by tenants by the entirety during the marriage is exempt from partition.

What Are the Steps in a New York Partition Action?

A partition action in New York typically unfolds through the following sequential steps:

1. Filing the Complaint: The plaintiff, the co-owner initiating the action, must file a formal complaint with the Supreme Court in the county where the subject property is physically located. This crucial legal document must clearly articulate the plaintiff’s ownership interest in the property, provide a comprehensive legal description of the property, and explicitly request the court to order a partition.
2. Naming and Serving Defendants: The plaintiff is legally obligated to name and properly serve all other co-owners of the property, as well as any individuals or entities holding liens (such as mortgages) or other encumbrances against the property. These parties are designated as defendants in the lawsuit, ensuring that all parties with a vested interest in the property are formally notified of the action and have the opportunity to respond.
3. Determination of Legal Right to Partition: The court’s initial task is to adjudicate whether the plaintiff possesses a valid legal possessory interest in the property that entitles them to seek partition under RPAPL § 901. As a general principle, New York law grants co-owners the right to seek partition, meaning the court will likely approve the action unless a valid legal reason to prevent it is presented.
4. Appointment of a Referee: If the court determines that the plaintiff has a valid right to partition, RPAPL § 903 grants the court the authority to appoint a neutral third party known as a referee. The referee’s role is to conduct an impartial investigation into the circumstances of the property and the co-ownership, and to make recommendations to the court regarding the most equitable method of partition.
5. Referee’s Report: The referee undertakes a thorough examination of the property, considering factors such as its physical characteristics, market value, and the feasibility of physical division. Based on this investigation, the referee will prepare a comprehensive report to the court, recommending either partition in kind (physical division) or partition by sale.
6. Court Review and Judgment: Upon receiving the referee’s report, the court will carefully review the findings and recommendations. The court then issues a judgment, which either orders the physical division of the property or directs its sale.
7. Legal Standard: Courts in New York generally recognize partition as a matter of right for eligible co-owners. This means the court will typically grant the partition request unless a valid legal or equitable defense is successfully asserted by the defending parties. In Arata v. Behling, 57 A.D.3d 925 (2d Dept. 2008), the plaintiff sought partition of property he acquired from his father, who retained a life estate. The defendant, the father’s long-time companion, had resided on the property since 1992. The court affirmed the denial of the plaintiff’s summary judgment motion, finding that although the plaintiff demonstrated a prima facie right to partition, the defendant raised triable issues of fact regarding equitable considerations, such as her long-term occupancy and contributions to the property. This case underscores that equitable factors can influence partition actions.

What Is the Difference Between Partition in Kind and Partition by Sale?

The referee will assess whether the property can be divided physically or should be sold. Their recommendation typically falls into one of the following categories:

• Partition in kind: This is a physical division of the property among the co-owners. It may be recommended if the property is large and undeveloped, with clearly definable boundaries, and if dividing it would not significantly reduce its value.
• Partition by sale: This is the more common outcome, especially for residential properties like single-family homes that cannot be practically divided. In these cases, the court will order the property to be sold—either at public auction or by private sale—and the net proceeds will be divided among the co-owners according to their ownership shares.

Understanding the distinction between these two outcomes is important when pursuing or defending a partition action. To learn more about your options and protect your legal rights, contact an experienced New York partition lawyer.

What If One Co-Owner Wants to Keep the Property?

If one or more co-owners have a strong desire to retain ownership of the entire property, they have the option to attempt to buy out the ownership shares of the other co-owners. RPAPL § 915 explicitly allows the court to authorize such a buyout arrangement during the partition action. The court may facilitate negotiations to determine a fair market value for the outgoing co-owners’ interests.

If the co-owners seeking to retain the property and those wishing to sell cannot reach a mutually agreeable buyout price, the court retains the authority to order a public or private sale of the property. Negotiations regarding a potential buyout can occur at any stage of the litigation, either before a formal trial commences or even after the court has made an initial determination that partition is legally appropriate.

Because buyout negotiations can be complicated and require a careful evaluation of property value and legal rights, it is important to work with an experienced New York partition lawyer to protect your interests and guide you through the process.

What Are the Defenses to a Partition Action?

While partition is generally considered a right of co-owners, defendants in a partition action can raise certain legal or equitable defenses in an attempt to prevent or limit the partition. These potential defenses include:

• Disputing the Plaintiff’s Ownership: The defendant may challenge the validity or extent of the plaintiff’s claimed ownership interest in the property.
• Citing an Enforceable Agreement Not to Partition: If the co-owners had previously entered into a valid written agreement explicitly stating that they would not seek partition of the property, this agreement may serve as a defense.
• Claiming that Partition Would Cause Significant Economic Harm: A defendant might argue that the partition, particularly a partition by sale under unfavorable market conditions, would result in substantial financial detriment to all co-owners. A defense of economic harm might arise if partitioning the property would destroy a unique feature or significantly reduce the value of all resulting shares.
• Asserting Entitlement to an Offset for Improvements or Expenses: A co-owner who has made significant capital improvements to the property or has disproportionately borne necessary expenses like mortgage payments, property taxes, or essential repairs may argue that they are entitled to an offset or credit in the final distribution of proceeds.
• Implied Waiver or Estoppel: Courts may deny partition if the evidence demonstrates that the plaintiff has implicitly waived their right to partition through their conduct or if the principles of estoppel apply, meaning the plaintiff’s actions have led the defendant to reasonably rely on a certain state of affairs to their detriment. For instance, if co-owners have a long-standing agreement on how the property will be used and relied on that agreement, a court might find an implied waiver of the right to partition. In Graffeo v. Paciello, 46 A.D.3d 613 (2d Dept. 2007), the court addressed defenses to a partition action. The plaintiff sought partition of jointly owned property, but the defendant opposed, arguing that the plaintiff had previously agreed not to partition and had waived the right through conduct. The court held that while partition is generally a right among co-owners, equitable defenses such as waiver, estoppel, or the existence of an enforceable agreement not to partition can bar the action. This case illustrates that courts may deny partition when a co-owner’s actions or agreements suggest an intention to forgo that right.

How Are the Proceeds Distributed?

In cases where the court orders a sale of the property, the net proceeds from the sale are typically distributed among the co-owners in direct proportion to their respective ownership interests. However, New York courts possess the equitable authority to adjust these distributions to account for various financial contributions and obligations related to the property. Common adjustments include considerations for:

• Property Tax Payments: A co-owner who has paid more than their proportionate share of property taxes may be entitled to a credit.
• Mortgage Payments: Similarly, a co-owner who has made mortgage payments exceeding their share may receive an adjustment.
• Maintenance Costs: Necessary expenses incurred for the upkeep and preservation of the property can be factored into the distribution.
• Capital Improvements: A co-owner who has funded capital improvements that have increased the property’s value may be compensated for their investment.

In Goldberger v. Rudnicki, 94 A.D.3d 1048 (2d Dept. 2012), the plaintiff sought partition and sale of jointly owned property. The defendants argued that they had invested in improvements and maintenance of the property, including substantial work on a tennis court and pool area. The court agreed that equitable considerations applied. Based on evidence of the defendants’ financial contributions, the court reduced the plaintiff’s share of the sale proceeds to compensate the defendants for their expenses. The decision confirmed that in partition actions, courts may adjust how proceeds are divided when one co-owner has made significant improvements that increased the property’s value.

Frequently Asked Questions (FAQs)

Q. What if the property Is mortgaged?

A. The existence of a mortgage on the property does not automatically preclude a partition action. However, the mortgage lien remains attached to the property and must be satisfied from the proceeds of any court-ordered sale before the co-owners receive their respective shares. The lender holding the mortgage will typically need to be formally notified of the partition action and may participate in the proceedings to protect their financial interests. The final judgment issued by the court will invariably include a provision directing that the outstanding balance of the mortgage be paid off from the sale proceeds.

Q: Can I recover costs I paid for repairs or taxes?

A: Possibly. New York courts have the equitable power to adjust the final distribution of sale proceeds to account for necessary payments made by one co-owner for the benefit of the property, such as essential repairs, mortgage payments, and property taxes, exceeding their proportionate share. You will need to provide documentation and evidence of these expenditures to the court.

Q: Can we use mediation or settlement?

A: Yes, absolutely. Settlement and mediation are often encouraged by New York courts as alternative dispute resolution methods that can save time, reduce legal costs, and foster more amicable outcomes compared to protracted litigation. An experienced partition attorney serving New York can skillfully negotiate on your behalf and help prepare a legally sound and enforceable settlement agreement.

Q: Can the referee’s decision be challenged?

A: Yes. The referee’s report and recommendations are subject to review and approval by the court before a final order is issued. Parties who disagree with the referee’s findings have the right to file objections with the court, which will then consider these objections before rendering its final judgment.

Contact Stephen Bilkis & Associates

If you co-own real estate in New York and are facing a dispute over its use or sale, you have rights under the law. Whether you want to file a partition action or defend against one, the experienced partition attorneys in New York at Stephen Bilkis & Associates can help. Our team has successfully represented clients throughout New York in partition cases involving homes, investment properties, and inherited real estate. Contact us today at 800.696.9529 to schedule a free no obligation consultation and learn how we can protect your interests and help you reach a resolution. We serve clients throughout New York, including Manhattan, Brooklyn, the Bronx, Queens, Staten Island, Long Island, Nassau County, Suffolk County, and Westchester.