Detailed Answer — How a Hawaii court handles appointment of a commissioner and private sales in partition matters
This section explains, in plain language, how Hawaii courts generally treat requests to appoint a commissioner (sometimes called a referee or special master) to carry out a private sale of property in a partition action. It summarizes the court’s authority, the factors the court will consider, the usual procedural steps, and practical risks. This is educational material and not legal advice.
Can a court appoint someone to handle a sale in a partition action?
Yes. Under Hawaii courts’ equitable powers, the circuit courts that hear partition actions can appoint a neutral person to perform tasks the court delegates — such as conducting a sale of the property. Courts commonly appoint commissioners, referees, or special masters to value property, supervise sales, take bids, and deliver a report to the court for confirmation. The court must be satisfied that the procedure is fair, that notice is adequate, and that the sale serves the interests of the parties and justice.
Will the court allow a private sale directly to a buyer you bring?
Possibly, but not automatically. Courts often prefer a sale process that protects all co-owners’ rights. A private sale to a buyer produced by one party can be approved if the court finds that the sale is fair, that price and terms are reasonable, and that the sale provides adequate protection to co-owners who are not selling voluntarily. The court will look for evidence that the sale maximizes value or is otherwise justified (for example, when a public sale would be impractical or would fetch lower value).
Key factors the court will evaluate
- Whether the commissioner is neutral and competent to handle the sale.
- Whether full and proper notice of the proposed sale was given to all parties and any lienholders.
- Whether the sale price is fair. Courts typically want an appraisal or other evidence of fair market value.
- Whether conflict-of-interest issues exist (for example, if the commissioner is close to a buyer, or if a co-owner or counsel stands to gain disproportionately).
- Whether procedural protections exist — e.g., an opportunity for overbids or a confirmation hearing where the court can review the sale.
- Whether a public sale (auction) would likely bring a materially higher price than the proposed private sale.
Typical procedural steps to request court appointment of a commissioner for a private sale
- File a motion or application with the circuit court asking for partition by sale and for appointment of a commissioner to conduct a private sale. Attach the proposed purchase agreement or offer, a proposed order appointing the commissioner, and a statement of proposed compensation for the commissioner.
- Provide supporting evidence: a recent appraisal or broker opinion of value, disclosures about the buyer, and a declaration that details notice plans and why a private sale is appropriate.
- Serve the motion and proposed sale documents on all co-owners, lienholders, and any parties of record, and follow the court’s local rules for timing and form of service.
- Attend the court hearing. Opposing co-owners can object. Be prepared to explain why the private sale is fair and why the chosen commissioner is fit to act.
- If the court approves, the commissioner carries out the sale under the court’s order and later files a report and accounting. The court then holds a confirmation hearing before distributing proceeds to the parties and paying liens, costs, and the commissioner’s fee.
What the court commonly requires before confirming a private sale
- Full disclosure of the relationship between the buyer and any party or the commissioner.
- An appraisal or broker’s opinion showing the sales price is within a reasonable range of market value.
- Proof of adequate notice to parties and lienholders and an opportunity for interested persons to object or overbid.
- A written report and accounting from the commissioner describing how the sale was conducted and how proceeds should be distributed.
Risks and practical considerations
Private sales connected to partition proceedings are often scrutinized closely. If a co-owner or an insider buys through a private sale without adequate disclosures, other parties may challenge the sale or seek rescission or an accounting. The court may prefer a public sale by auction if the parties cannot show the private sale is in everyone’s best interest. Also expect the court to consider commissioner compensation, possible bond requirements, and the time it takes to get hearings and confirmation.
Where to check the law and court rules
Hawaii’s statutes and court rules govern procedure for civil actions, equitable remedies, and court appointments. For statutory language and current rule text, consult the Hawaii Revised Statutes and the Hawaii State Judiciary resources:
- Hawaii Revised Statutes and searchable code: https://www.capitol.hawaii.gov/hrscurrent/
- Hawaii State Judiciary (court procedures, local rules, forms): https://www.courts.state.hi.us/
If you find a statute or rule that specifically addresses partition sales or appointment of commissioners, bring that citation to your attorney to confirm how it applies to your case.
Sample evidence to present when asking the court to appoint a commissioner for a private sale
- A licensed appraiser’s report dated close to the proposed sale date.
- A copy of the purchase agreement with the proposed buyer, including contingency details and proof of buyer’s ability to close.
- A declaration that discloses relationship history between buyer and any party or proposed commissioner.
- A proposed order outlining the commissioner’s duties, fee, and any bond or reporting requirements.
Bottom line
Under Hawaii practice, courts can and do appoint commissioners to oversee partition sales. You can ask the court to appoint a commissioner to handle a private sale to your buyer, but success depends on demonstrating fairness, full disclosure, appropriate valuation, and adequate notice to all parties and lienholders. Expect the court to supervise the sale closely and to require protections such as appraisal evidence, disclosure, and a confirmation hearing.
Disclaimer: This information is educational only and does not constitute legal advice. For advice about your specific situation, consult a licensed Hawaii attorney. You can find lawyer referral resources through the Hawaii State Judiciary or the Hawaii State Bar Association.
Helpful Hints
- Get a professional appraisal early to support the sale price.
- Choose a neutral, experienced commissioner; disclose any connections in writing.
- Serve all co-owners, lienholders, and interested parties with the motion and proposed sale documents and keep proof of service.
- Be ready for an overbid/confirmation hearing; prepare a short, clear declaration explaining why the private sale is reasonable and in the parties’ interests.
- Avoid selling to an insider without full disclosure and court approval — those sales attract the most scrutiny and objections.
- Consider settlement or partition by agreement if co-owners can negotiate terms instead of litigating.
- Ask the court for clear instructions in the order appointing the commissioner about compensation, reporting deadlines, and whether a bond is required.
- Consult a Hawaii attorney before filing motions — small procedural errors can delay or prevent approval.
- Use the Hawaii State Judiciary website and the Hawaii Revised Statutes for official rules and forms: https://www.courts.state.hi.us/ and https://www.capitol.hawaii.gov/hrscurrent/.