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Frequently Asked Questions Pertaining to Partition Matters
A partition action is a type of lawsuit pertaining to joint owners of real property. When two or more owners cannot agree on the disposition of the property in question, any of the owners can file a partition action in the appropriate court.
The most common type of relief is an order that the real property be sold and the proceeds divided among the owners. The proceeds would be divided in the same proportion as the ownership interests, so that if two parties each own half of the real estate, the proceeds are divided 50% - 50%.
If the property in question is capable of being physically divided, the court may order same, with each party to receive a proportionate share of the property. However, this is rare, as most real property has been improved with buildings, or a house, which usually cannot be physically divided between multiple owners. This solution is usually only possible when the real property in question is a vacant and unimproved lot. Even in this situation, it is usually more practical for the property to be sold and the proceeds divided between the owners.
Often, a property has a single owner, who then passes away. In their will or through operation of law, the property ownership then passes to multiple owners (perhaps the adult children of the deceased), who may not have the same goals and aspirations for the property. If the parties cannot agree on how the property should be used, a partition action often results. Other situations may involve a couple who buy property, own it jointly, but do not marry. If the couple breaks up, they may not agree on how the property should be used, again resulting in a partition action.
In such a situation, the legal ownership of the property controls. A person remaining in possession does not have the right to block the potential sale of the property simply by virtue of living at the property.
Even after a lawsuit is brought, the parties, through their attorneys, can agree to sell the property without court intervention, and divide the proceeds fairly. Of course, it is necessary to have a binding settlement agreement drafted by counsel to ensure that the parties follow through on such a resolution. Another resolution is when one of the co-owners agrees to pay the other owners to buy out their share of the property. In such situations, a new deed should be prepared by counsel, showing the new ownership.
Our firm will assist the parties in obtaining financing, if necessary. A mortgage can be taken out against the property in question, with the proceeds going to pay a co-owner for their share of the property in conjunction with a settlement. Our attorneys will coordinate the closing process in this instance.
If necessary, the court may order an inquest regarding the income and expenses of the property. Each co-owner is given the opportunity to provide evidence of their contributions to the upkeep of the property, such as payment of real estate taxes, insurance, and property repairs, and any income they may have earned from renting the property. A court-appointed referee then issues a report to the court that details what each owner should receive from the property sale, incorporating the evidence from the inquest.
A partition action is a highly technical legal action with many specific court requirements to be met. We recommend bringing such actions through experienced legal counsel to ensure that your rights are protected.
In order to properly evaluate a case, we request that a copy of all documents relating to ownership of the property, such as deeds, wills, and other agreements, be provided. We would also request copies of all documents showing expenses and any income related to the property.
Any property that has multiple owners, whether commercial or residential, can be the subject of a partition action. Our firm has experience in handling all types of property disputes.
Our firm handles matters in all five boroughs of New York City, as well as Westchester, Rockland, Putnam, and Nassau Counties.
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