Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed attorney to address your specific situation.
Detailed Answer
In Hawaii, a partition action lets co-owners of real property ask the court to divide or sell the property when they cannot agree on its use or disposition. The process is governed by Hawaii Revised Statutes (HRS) Chapter 667.
1. Who May File
Under HRS §667-1, any tenant in common or joint tenant may file a petition for partition. This includes individuals, trusts, estates, and entities holding undivided interests in the same property.
2. Filing the Complaint
The petitioner files a verified complaint in the circuit court where the property is located. The complaint must identify all co-owners, describe the property, and state the relief sought (division in kind or sale).
3. Service and Response
Co-owners named as defendants must be served per Hawaii Rules of Civil Procedure. They typically have 20 days to file an answer admitting or denying allegations and raising any defenses.
4. Commissioners or Referees
If the court cannot divide the property by agreement, it appoints commissioners (referees) to survey and report how to divide the land. See HRS §667-16.
5. Partition in Kind vs. Sale
- Partition in Kind: If physical division is practical and fair, the court orders the land divided into parcels reflecting each owner’s share.
- Partition by Sale: If division in kind is impractical or would significantly reduce value, the court orders a public auction. The property sells to the highest bidder and the proceeds are distributed.
6. Distribution of Proceeds
After sale, the court allocates net proceeds to each co-owner according to their ownership percentage, minus court costs and commissioner fees.
7. Cost Allocation
Court costs, appraisal fees, and commissioners’ fees are paid from the proceeds. The court may apportion additional costs among co-owners if equitable.
Helpful Hints
- Obtain a recent boundary survey and appraisal to support valuation and division proposals.
- Explore mediation before filing to reduce legal fees and maintain relationships.
- Review any existing co-ownership or operating agreement for partition clauses.
- Consider a buy-out: one co-owner purchases others’ interests at an agreed price.
- Keep detailed records of improvements and expenses; these can affect share allocation.
- Be aware of potential tax implications from sale proceeds.
- Consult a real property attorney to ensure compliance with HRS Chapter 667.