Three siblings inherit their parents’ brownstone in Brooklyn. For decades, it was the center of family life. Now, it is the center of a family dispute. One daughter wants to sell and take her share of the equity. The son wants to renovate the property and rent it out. The third child, with fewer assets, wants to move in. They are at an impasse—and each has a legal right to their position. When communication breaks down, the property meant to be a legacy becomes a liability.
This is a scenario I see play out far too often. When co-owners of real estate cannot agree on what to do with it, New York law provides a powerful, if blunt, legal remedy: the partition action.
What a Partition Action Accomplishes
A partition action is not a negotiation. It is a lawsuit filed in court by one co-owner against the others, asking a judge to force the sale or physical division of the property. It is the law’s answer to a deadlock. The right to seek partition is a fundamental tool for anyone who holds property as a “tenant in common” or “joint tenant.”
The legal basis is found in Article 9 of New York’s Real Property Actions and Proceedings Law. Specifically, RPAPL § 901 grants any person holding real property as a joint tenant or tenant in common the right to bring an action for partition. This right is nearly absolute. It is very difficult for one co-owner to stop another from filing, absent a prior written agreement stating otherwise.
The court’s goal is to sever the co-ownership, allowing each party to go their separate ways with their share of the asset. How the court achieves this depends on the property itself.
Two Paths: Partition in Kind vs. Partition by Sale
When a partition action is filed, the court has two primary options. The first, and historically preferred, method is “partition in kind.”
A partition in kind involves the physical division of the property. Imagine a large, undeveloped parcel of land. A court could hire a surveyor to draw new boundary lines, dividing the one tract into three smaller, individually owned parcels. Each former co-owner would then receive a deed to their specific piece. For most properties we see—a single-family home, a condominium, or a commercial building—physical division is impossible without destroying its value. You cannot saw a Manhattan apartment in half.
For this reason, the second option, “partition by sale,” is far more common. If the court finds that a physical division would cause “great prejudice” to the owners, it will order the property sold. A court-appointed referee oversees the sale, and the proceeds are then divided among the co-owners according to their ownership interests. After the sale, the referee accounts for certain expenses—such as mortgage payments, taxes, or necessary repairs made by one owner—and adjusts the final distributions.
The True Cost of a Forced Sale
A partition action provides a definitive end to a stalemate, but it is an adversarial process with significant costs. It is litigation. This means legal fees, court filing fees, and the referee’s costs are all paid from the sale proceeds. This diminishes the final inheritance or equity each party receives.
More than the financial cost is the toll it takes on relationships. Forcing a sale through the courts often formalizes the end of a relationship, turning a family asset into a courtroom battleground. The process is public, and the outcome is determined by a judge, not by the family.
Stewardship. A well-considered estate plan is about more than distributing assets; it is about preserving family harmony and ensuring a legacy is a blessing, not a burden. A partition action is often the result of a failure to plan for this exact contingency.
The best way to deal with a partition action is to avoid it. This can be done through proactive planning, such as placing property in a trust with clear instructions for its management or sale. Co-owners can also sign a well-drafted tenancy-in-common or partnership agreement. These documents can set out rules for buyouts, rights of first refusal, and methods for resolving disputes without resorting to the courts.
If you co-own property and foresee a potential deadlock, or if you are planning your estate to prevent this situation for your heirs, the first prudent step is to create a clear agreement. We can schedule a consultation to review your deed and discuss an arrangement that defines each owner’s rights and responsibilities from the outset.
