Three siblings inherit a paid-off townhouse in Brooklyn. One wants to sell the property immediately and split the cash. The second wants to hold onto the building and rent it out to generate passive income. The third sibling moved into the primary bedroom two weeks after the funeral, refuses to pay rent, and ignores requests to discuss the property’s future. By month six, the family text thread goes silent, and the annual property taxes are past due. When co-owners reach a total impasse over inherited real estate, the law provides a blunt instrument to break the tie: a partition action.
We spend our careers trying to keep families out of the courtroom. We draft deliberate, highly specific documents to ensure a smooth transition of wealth. But when a parent dies without a proper plan—or leaves property outright to multiple children as tenants in common—disputes over real estate are almost inevitable. When those disputes cannot be resolved at the kitchen table, the court must intervene.
Breaking the Deadlock Through Judicial Intervention
A partition action is a formal lawsuit filed in Supreme Court—or occasionally in Surrogate’s Court if the dispute is tied to an ongoing estate administration. The premise is straightforward. The law recognizes that no one should be forced to co-own real estate against their will. If you own a percentage of a property, you have the right to liquidate your equity.
Historically, partition actions took one of two forms: partition in kind or partition by sale. Partition in kind involves drawing a physical line through the property and dividing the acreage among the owners. While this works for a fifty-acre farm upstate, you cannot physically divide a single-family home or a Manhattan co-op. Therefore, in the vast majority of cases involving residential real estate, the court orders a partition by sale. The property is liquidated, and the proceeds are divided among the owners according to their respective percentage interests, adjusted for any unequal contributions to taxes, maintenance, or improvements.
Filing a partition action is an adversarial process. One sibling effectively sues the others. It immediately shifts the family dynamic from a private disagreement to a public litigation matter. Deadlock.
The Financial Attrition of Forced Sales
While a partition action will eventually resolve the ownership dispute, it comes at a steep financial cost. When you ask a judge to force the sale of a home, you surrender control over how and when that sale happens.
Once the court determines that a property cannot be physically divided, it appoints a neutral third party, known as a referee, to oversee the sale. The referee is a court-appointed attorney compensated directly from the sale proceeds. In addition to the referee’s fees, all parties involved will incur significant legal expenses. The plaintiff must pay their attorney to initiate and prosecute the action, while the defending co-owners must hire their own counsel to protect their interests and argue over the final accounting.
Before any heir receives a dollar, the final sale price is reduced by referee fees, court costs, broker commissions, and legal fees. Furthermore, a co-owner who paid the property taxes or funded major repairs out of pocket during the dispute will petition the court for reimbursement from the other owners’ shares. The process is slow, expensive, and frequently drains a substantial portion of the generational wealth the parents spent their lives building.
Statutory Protections Under RPAPL § 993
For decades, partition sales frequently resulted in properties being auctioned off on the courthouse steps for a fraction of their actual market value. This disproportionately harmed families who inherited property but lacked the liquid capital to buy out a sibling who wanted to cash out.
To curb the loss of family wealth, New York enacted the Uniform Partition of Heirs Property Act, codified in RPAPL § 993. This statute fundamentally altered how courts handle partition actions among family members who inherited real estate.
Under RPAPL § 993, the court process includes built-in safeguards to prevent fire sales and protect non-petitioning heirs. The process unfolds in several distinct phases:
- Independent Appraisal: Rather than moving straight to a public auction, the court must order an independent appraisal to determine the fair market value of the property.
- Right of First Refusal: Once the value is established, the co-owners who did not file the partition action are given a statutory right to buy out the petitioning owner’s share at the appraised price.
- Open-Market Sale: If the other heirs cannot afford the buyout, the court will typically order the property to be listed on the open market with a licensed real estate broker, rather than sold at a public auction. This ensures the property commands a fair retail price.
Only if the open-market listing fails to produce a buyer will the court resort to a traditional auction. While RPAPL § 993 provides vital protections for inherited wealth, it does not make the partition process any less emotionally exhausting or expensive to litigate.
Preserving the Family Legacy Through Deliberate Planning
A partition action is ultimately a symptom of incomplete estate planning. When parents leave a house outright to multiple children, they are essentially forcing their children into a business partnership—one they never asked for and may not be equipped to manage.
As stewards of a family’s legacy, we advise against leaving real estate to children as equal tenants in common without a governing structure. Instead, property should be transferred into a carefully drafted trust. A trust changes the entire landscape of inheritance. By placing the home in a trust, you appoint a trustee who holds a strict fiduciary duty to manage the asset according to your exact instructions.
We routinely structure trusts to address these exact contingencies. For example, a trust can stipulate that upon the parents’ passing, the property must be sold by the trustee and the proceeds divided, completely removing the children’s ability to fight over whether to keep or sell the house. Alternatively, the trust can grant one specific child a defined window of time—perhaps six months—to purchase the home from the trust at a predetermined discount, backed by a formal appraisal process.
By making these decisions in advance, you remove the burden of negotiation from your children. You replace the unpredictability of a court-ordered partition sale with clear, enforceable instructions that preserve both the value of the asset and the harmony of the family.
If you are currently holding title to property with co-heirs and foresee a dispute, or if you wish to structure your own estate to prevent future deadlocks among your children, schedule a real estate succession review with our office. We can examine your current deeds and draft the specific trust provisions necessary to keep your family out of the courtroom.
