Three siblings inherit their parents’ brownstone in Brooklyn. It’s been in the family for fifty years, free and clear of any mortgage. One sibling, who lives out of state, wants to sell immediately and use the cash for her children’s college fund. Another, who lives nearby, wants to renovate the property and rent it out for long-term income. The third still lives in the house and has no intention of moving or paying rent to his co-owners. They are at a complete impasse. The property, meant to be a legacy, has become a source of conflict.
In my practice, I see this scenario frequently. When co-owners of real estate—whether they are family members, business partners, or unmarried couples—cannot agree on the use, management, or sale of a property, the law provides a powerful, if blunt, remedy: a lawsuit known as a partition action.
What a Partition Action Accomplishes
A partition action is a court-supervised process to divide real property among its co-owners. Its purpose is to terminate the joint ownership, allowing each party to go their separate way with their share of the asset. In New York, the action results in one of two outcomes.
The first is a “partition in kind,” which physically divides the property into separate parcels. Each co-owner receives a distinct piece. This is practical only for large, undeveloped tracts of land—not a single-family home, a condominium, or a co-op apartment in Manhattan. You cannot draw a line down the middle of a living room and call it a fair division.
The second—and far more common—outcome is a “partition by sale.” The court orders the property to be sold, and the proceeds are then divided among the co-owners according to their ownership interests. This is the default remedy for most residential properties. It forces a resolution where none could be reached by agreement.
The Absolute Right to Partition in New York
Filing a partition lawsuit is not a matter of judicial discretion—it is a legal right. Under Article 9 of New York’s Real Property Actions and Proceedings Law (RPAPL § 901), anyone who holds property as a tenant in common or a joint tenant can start an action to partition it. Unless a written agreement states otherwise, one co-owner cannot be forced to remain in an unwanted ownership arrangement.
This right is absolute. It means that the sibling living in the family home cannot veto a sale indefinitely. The sibling who wants to hold the property as a rental cannot force the others to become landlords against their will. The law recognizes that shackling co-owners together indefinitely is unworkable. The partition action serves as the final, legal mechanism to break the deadlock.
But exercising this right has significant consequences. It moves a family dispute into the public, adversarial setting of a courtroom. A partition suit is a tool of last resort, used only when all attempts at a negotiated settlement have failed.
The Reality of a Partition Lawsuit
Initiating a partition suit is not a simple matter of filing a form. It is full-blown litigation. One co-owner files a complaint in the New York State Supreme Court. The other co-owners are served and become defendants. From there, the process involves several key stages.
First, the court must determine the ownership interests of each party. This is usually straightforward if the interests are defined in the deed, but it can become complicated if there are disputes about initial contributions or subsequent agreements.
Second, and often most contentiously, is the “accounting” phase. During this stage, co-owners can seek adjustments to their share of the proceeds. For instance, a co-owner who paid all the property taxes and paid for a new roof can seek credit for those expenses. Conversely, the co-owners who were not living in the property can demand that the occupying sibling pay them the fair market rental value for the period of their exclusive use. This accounting can turn into a mini-trial of its own, examining years of receipts and financial records.
Finally, if the court orders a sale, it will appoint a neutral third party, called a referee, to oversee the process. The sale is often conducted as a public auction on the courthouse steps. While it is a fair and transparent process, a public auction does not always yield the highest possible price that could be obtained through a traditional real estate broker on the open market. The costs of the lawsuit—including attorney fees for all sides and the referee’s commission—are paid from the sale proceeds before any distribution is made to the owners.
A Lawsuit Should Be the Last Resort
While the right to partition is absolute, pursuing it is not always the most prudent course of action. The process is expensive, it can take a year or more, and it almost certainly will damage personal relationships beyond repair. Stewardship of a family asset involves more than just preserving its financial value; it also involves preserving the family itself.
Before filing a lawsuit, we explore alternatives. A negotiated buyout is often the best path. A fair buyout price, determined by formal appraisals, can facilitate an agreement where one sibling purchases the interests of the others. This keeps the property in the family, if desired, and gives the others the liquidity they need. Mediation with a neutral professional can also help parties find common ground that a court cannot.
A partition action remains the necessary and final answer when one party is entirely unreasonable or unresponsive. It provides a definitive end to an unsustainable situation. But it is a remedy born of conflict, not cooperation.
If you are in a dispute with a co-owner over a shared property, the first step is to understand all available options. I invite you to schedule a consultation to review the specifics of your deed, the property’s finances, and your goals. We can then map out a strategy that protects your interests—inside or outside of a courtroom.
