Three siblings inherit their parents’ Brooklyn brownstone. One wants to sell it immediately, another wants to rent it out for income, and the third wants to move in. For months, the stalemate continues while property taxes and maintenance costs pile up. The family home, once a source of unity, has become a point of contention.
In my practice, I see this scenario often. When co-owners of real estate—especially family members who have inherited property together—cannot agree on what to do with it, New York law provides a powerful, if blunt, remedy: a partition action.
The Right to Partition: A Final Resort
A partition action is a lawsuit filed by one co-owner against the others to force a division or sale of the property. The right to partition is fundamental to co-ownership. The law does not compel someone to remain a co-owner of real property against their will.
This right is codified in Article 9 of New York’s Real Property Actions and Proceedings Law (RPAPL). Specifically, RPAPL § 901 grants any person holding property as a joint tenant or a tenant in common the right to bring an action for the partition of the property. This means if you own even a small, undivided interest in a property, you can initiate this process.
There are two possible outcomes:
- Partition in Kind: This is a physical division of the property. The court separates the land into distinct parcels, and each co-owner receives their own piece. This is practical for a large tract of vacant land but is almost always impossible for a single-family home or a Manhattan apartment. You cannot simply draw a line down the middle of a kitchen.
- Partition by Sale: This is the far more common outcome for residential properties. The court orders the property to be sold at a fair market value, and the proceeds are divided among the co-owners according to their respective interests.
Initiating a partition action is not a decision to be taken lightly. It is litigation. It involves filing a complaint, serving the other owners, and proceeding through the court system. It can be time-consuming and expensive, but sometimes it is the only viable path to break a deadlock and allow each owner to receive the value of their inheritance.
How the Partition Process Unfolds
Once a partition action is filed, the court’s first job is to determine the rights, shares, and interests of each party in the property. The court will review the deed and any other relevant documents, like a will or trust, to confirm ownership percentages.
If the court determines that the property cannot be physically divided without great prejudice to the owners—the standard for a single home—it will order a sale. The court typically appoints a neutral third party, a referee, to oversee the sale. The referee’s job is to ensure the sale is conducted commercially and reasonably, often through a public auction or by engaging a real estate broker, to achieve the best possible price.
From the sale proceeds, the referee first pays the costs of the action. This includes their own fee, legal fees, and any outstanding liens on the property like mortgages or taxes. Only after these expenses are settled is the remaining balance distributed to the co-owners. The court can also make adjustments. If one sibling paid for a new roof or covered the property taxes for years, they may be entitled to a credit, receiving a larger share of the proceeds to account for those contributions.
Stewardship Through Deliberate Planning
A partition action is often the result of an absence of planning. When a parent leaves a house to their children as tenants in common without any further instruction, they may be inadvertently setting the stage for conflict.
This is where deliberate estate planning demonstrates its value. A properly structured plan can provide clear instructions and avoid these impasses. For example, a will can include a provision directing the executor to sell the property and distribute the cash proceeds, removing any debate among the beneficiaries. Alternatively, the property could be placed in a trust. The trustee—who has a fiduciary duty to act in the best interests of all beneficiaries—can be given clear authority to manage, rent, or sell the property according to the creator’s wishes. This replaces family arguments with a clear, legally enforceable directive.
Stewardship is about more than just transferring assets; it’s about preserving family harmony and ensuring your legacy is a source of support, not a source of strife.
For an executor, trustee, or beneficiary facing a deadlock over a shared property, the process begins with a review of the governing documents. The deed, will, or trust instruments will clarify each party’s rights and reveal the available paths to a resolution.
