Forcing the Sale of Co-Owned Property in Hawaii: Options When a Co-Owner Refuses Mediation

Short answer: If a co-owner refuses further mediation in Hawaii, you can usually ask the circuit court to resolve the dispute by filing a partition action. The court can order a physical division of the property (partition in kind) or, more commonly, order a sale and divide the proceeds among co-owners after paying liens, expenses, and adjustments. This article explains the steps, what to expect, and practical options before and after filing.

What a partition action is and when to use it

Partition is a lawsuit that lets co-owners of real property force a judicial division or sale when they cannot agree on use, management, or disposition. In Hawaii, partition disputes are resolved in the circuit courts where the property is located. Partition is appropriate when co-owners (tenants in common or joint tenants) cannot reach an agreement and one or more owners want a clean end to the shared ownership.

Common steps in Hawaii

1. Confirm ownership and interests. Gather the deed, title report, mortgage records, tax bills, and any written agreements (partition agreements, buy-sell agreements, or wills). Confirm whether ownership is joint tenancy or tenancy in common; this affects survivorship but not the availability of partition in most cases.
2. Attempt negotiated solutions first. Courts expect parties to try negotiation or mediation. Even if one co‑owner refused further mediation, document your attempts (emails, letters, mediation session notes). Consider offering a buyout, selling to a third party jointly, or agreeing on a managed sale.
3. File a partition complaint in circuit court. If negotiations fail, you (or your attorney) file a civil complaint asking the court to partition the property. The complaint names all co‑owners, states your ownership interest, and requests partition in kind or partition by sale.
4. Service and response. Each co-owner must be served. Defending parties may object, claim offsets (contributions to mortgage, repairs, or improvements), or raise legal defenses (e.g., homestead claims, equitable estoppel, or that complete relief requires resolving related liens or claims).
5. Court procedures and possible appointment of a commissioner. The court may order a partition in kind if practical. If sale is more equitable, the court will appoint a commissioner or referee to oversee a public or private sale, set sale terms, and prepare an accounting. The court supervises distribution after sale.
6. Sale, accounting, and distribution. Proceeds pay closing costs, mortgage(s), liens, property taxes, court costs, and reasonable expenses. The court then distributes remaining funds according to ownership shares, adjusted for contributions, improvements, or waste as the court determines.

What if a co-owner refuses mediation or tries to delay?

Refusing further mediation does not bar you from filing a partition action. However:

• Courts often encourage or require alternative dispute resolution; your refusal may reflect poorly, but it won’t prevent the court from hearing the case.
• A co-owner can file defensive motions (continuances, requests for appraisal, requests to liquidate liens first). Expect some procedural delay; the case timeline varies, usually several months to over a year depending on complexity.
• If a co-owner’s refusal is part of bad-faith delay or obstruction (e.g., hiding assets, refusing access for inspection, or creating waste), the court can impose remedies such as awarding attorneys’ fees or ordering expedited relief.

Practical and legal considerations specific to Hawaii

• Hawaii circuit courts handle real property partition and related title issues. Check the circuit court rules where the property sits for local filing requirements: Hawaii Circuit Courts.
• Title defects, liens, mortgages, tax delinquency, or homestead claims can complicate partition. The court must sort priorities before distribution.
• Contributions by one owner (mortgage payments, taxes, repairs) can lead to adjustments so that the paying owner receives credit on final distribution.
• Hawaii law treats co-owners’ rights to possession and use as intact during litigation unless the court orders otherwise.
• State and county real property taxes and special assessments are accounted for at sale.

Alternatives to a court-ordered sale

• Negotiate a buyout where one owner purchases others’ interests at an agreed price or as determined by appraisal.
• Agree to sell the property privately and split proceeds, which often reduces legal costs and delays.
• Enter a co-ownership management agreement covering leasing, maintenance, and expense sharing to avoid sale.
• Consider a partition-by-appointment sale (private sale supervised by court/commissioner) if the court agrees it yields better value than a public auction.

Costs, timeline, and likely outcomes

Costs include filing fees, service costs, attorney fees, appraisals, advertising and sale costs, and the commission or referee fee. If one owner forces partition, they should expect to pay their share of litigation costs; the court can award costs or attorneys’ fees in certain circumstances (for example, to compensate a party for bad‑faith conduct), but awards are not guaranteed.

Timelines vary. A straightforward partition with consent can close in a few months; contested partitions often take 6–18 months or longer. Partition in kind is rare for single-family lots; sale by court order is the most common result.

How to prepare before filing

1. Collect title documents, deeds, mortgage statements, tax bills, and insurance records.
2. Document attempts to mediate or negotiate and any responses.
3. Get a current market appraisal or broker opinion of value.
4. Make a list of improvements, payments, or contributions each co-owner made.
5. Consult a lawyer experienced in Hawaii real property litigation to evaluate complexity, costs, and chances of success.

Where to find Hawaii statutes and court rules

You can search the Hawaii Revised Statutes and review statutes and legislative history on the Hawaii State Legislature site: Hawaii State Legislature – Laws & Statutes. For court procedures, local rules, and forms, see the Hawaii State Judiciary: Hawaii State Judiciary. These resources will help you confirm filing steps, fees, and local forms.

When to talk to an attorney

Talk to an attorney when the other co-owner refuses mediation and you want a definitive pathway to end shared ownership. A lawyer can:

• Advise whether partition is appropriate given titles, liens, and other claims;
• Prepare and file the partition complaint correctly;
• Protect your financial contributions and argue for credits or offsets;
• Manage sale procedures and negotiate buyouts.

Helpful Hints

• Keep written records of all offers, mediation attempts, and payments. Documentation helps the court allocate credits and costs.
• Get an independent appraisal early to support a buyout offer or to establish market value for court accounting.
• Consider a mediated buyout even after filing; courts allow settlement at any point and settlements save time and money.
• Be realistic about legal costs versus your expected share of net proceeds. In low-value properties, litigation costs can exceed individual benefit.
• Check for county rules (zoning, approvals, condominium conversion limits) that might affect marketability and sale options.
• If the co-owner is withholding access or damaging the property, seek immediate relief from the court — temporary orders can preserve value and prevent waste.