Two siblings inherit their parents’ brownstone in Brooklyn. One wants to sell it and use the proceeds for a down payment on her own home. The other, who has been living there for years, wants to stay and has no intention of moving or selling. They are at an impasse. The carrying costs are adding up, and family dinners have become battlefields. In my practice, this is a tragically common scenario, and it’s one where the law provides a definitive—if sometimes difficult—path forward: the partition suit.
A partition action is not about blame. It is a legal recognition that co-ownership requires consensus. When that consensus breaks down, no one should be forced to remain a co-owner of real estate indefinitely. It is a tool for untangling shared ownership so each party can go their separate way.
The Absolute Right to Partition
A partition suit is a legal action filed in court to force the division or sale of a jointly owned property. In New York, this right is codified in law and is considered almost absolute for co-owners who hold the property as “tenants in common” or “joint tenants.” Unless a prior written agreement states otherwise, any co-owner can initiate this process without the consent of the others.
The legal foundation for this is found in Article 9 of the Real Property Actions and Proceedings Law (RPAPL). 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 is not a request the court can easily deny; it is a fundamental right of property ownership. The goal is to sever the co-tenancy. The court’s first preference is to physically divide the property if possible, an outcome known as “partition in kind.”
Partition in Kind vs. Partition by Sale
There are two primary outcomes in a partition action. The court first determines if the property can be physically divided without causing great prejudice to the owners.
Partition in Kind: This involves physically splitting the land into separate parcels, with each co-owner receiving a deed for their individual portion. This might be feasible for a large, undeveloped tract of land. It is, however, almost always impossible for a typical residential property. You cannot saw a single-family home in half, nor can you equitably divide a Manhattan co-op apartment.
Partition by Sale: When a physical division is not practical—as is the case for nearly all residential homes—the court will order a “partition by sale.” This is the most common outcome. The court appoints a neutral third party, a referee, to conduct a public sale of the property. The property is sold at auction, and the proceeds are then divided among the co-owners according to their respective interests.
A court-ordered sale provides a final resolution but may not achieve the same price as a private sale on the open market. The process involves court costs, referee fees, and attorney’s fees, all of which are paid from the sale proceeds before any distribution to the owners.
The Final Accounting: More Than a Simple Split
Dividing the proceeds is rarely as simple as cutting a check for 50% to each owner. The court undertakes a final accounting to ensure an equitable distribution. Here, the stewardship of the property over the years is put to the test.
The court will consider each owner’s contributions to the property. For example:
- Did one owner pay all the property taxes for the last decade?
- Did one sibling fund a necessary roof replacement or boiler upgrade?
- Has one owner been collecting all the rental income from a tenant?
These expenses and incomes can be credited or debited from each owner’s share. If one sibling paid $50,000 for a new kitchen that increased the home’s value, they may be reimbursed for that contribution from the sale proceeds before the remainder is split. Similarly, if the sibling living in the brownstone paid no rent, the court might offset the value of that occupancy against their share.
This accounting is a critical phase of the lawsuit. It is the court’s attempt to do justice and ensure the final distribution reflects the true financial history of the property. A partition action forces a resolution, but it also forces a reckoning.
If you are a co-owner of an inherited property and can no longer agree on its future, the first prudent step is to gather every document you have—receipts, tax bills, cancelled checks, and bank statements—related to your contributions. Once you have organized these records, we can schedule a consultation to review them and discuss the viability of a partition action.
