How to File a Partition Action in Hawaii to Split Inherited Property When a Co-Owner Won't Cooperate | Hawaii Partition Actions

Detailed Answer

Short overview: If you and one or more people inherit real property in Hawaii and one co-owner refuses to cooperate in selling or dividing it, you can ask a court to force a division of the property through a partition action. In Hawaii, partition actions are a civil remedy. The court can order physical division of the land (partition in kind) when feasible or order a sale and divide the sale proceeds among the owners (partition by sale).

Key statutes and places to read more

Hawaii Revised Statutes (HRS) – current statutes online: https://www.capitol.hawaii.gov/hrscurrent/.
Hawaii State Judiciary general information and court locations: https://www.courts.state.hi.us/.
Partition law in Hawaii is governed by the civil law of the state (see the HRS index for partition-related sections under the real property headings). If you want the statutory text, search the HRS site for “partition” or related terms above.

Before you file: confirm ownership and probate status

Confirm title: Check the recorded deed to see how title is held (e.g., tenants in common, joint tenancy, or in the decedent’s name). If title is still in the decedents name, probate may be required before ownership is clear.
Check probate: If the estate is still open, determine whether a personal representative has authority to act or whether the court must administer distribution first. If probate has closed and the decedents interest passed to heirs, those heirs are the likely parties in a partition action.
Gather liens and encumbrances: Identify mortgages, tax liens, mechanics liens, or other claims. Those lienholders must be named in the partition action or their interests addressed by the court.

Typical steps to file a partition action in Hawaii

Attempt negotiation first. Send a written demand to the uncooperative co-owner proposing sale, buyout, or mediation. Courts prefer parties try to resolve disputes without litigation when reasonable.
Hire a Hawaii real property attorney if possible. A lawyer can prepare pleadings, identify necessary parties, and explain local practice in the circuit court for the island where the property sits.
Prepare the complaint for partition. The complaint identifies the property, list all owners and known lienholders, states each partys claimed share, and asks the court for partition in kind or, if that is impracticable, for a sale with distribution of proceeds.
File in the correct court. Real property partition actions are generally filed in the Hawaii Circuit Court in the circuit where the property is located. The complaint must name all persons with an interest in the property (heirs, devisees, mortgagees, judgment creditors). The court rules and local forms are available from the Hawaii Judiciary website: https://www.courts.state.hi.us/.
Serve process on all required parties. Proper service must be completed on each named owner and lienholder. If someones identity or location is unknown, the court may permit constructive service by publication after you show diligent search efforts.
Request an appraisal. The court often relies on appraisals when deciding whether partition in kind is feasible and to determine fair division or sale value.
Hearings and possible appointment of a commissioner. The court may appoint a commissioner, referee, guardian ad litem, or receiver to handle appraisal, partition in kind, sale, or distribution. The commissioner often supervises marketing and court-ordered sale if sale is necessary.
Partition in kind vs. sale. If the land can be divided fairly and without prejudice to the owners, the court may order partition in kind (physical division). If dividing would damage the value or is impractical, the court commonly orders sale and distributes net proceeds among the owners after paying liens, expenses, and court costs.
Distribution of proceeds and final judgment. After sale or division and payment of debts and costs, the court enters a final judgment setting the shares each party receives. If a party paid for maintenance, taxes, or improvements, the court may address credits or offsets when it divides proceeds.

Practical issues that often arise

Who should be named? Name every recorded owner, heirs who received property in probate, and any lienholders. Omitting a necessary party can delay or invalidate the action.
Costs and timing: Partition cases can take months to more than a year, depending on complexity, contested issues, and whether the court orders sale. Expect court filing fees, appraisal fees, title searches, advertising costs for sale, and attorney fees if you hire counsel.
Tax consequences: A court-ordered sale has tax implications for capital gains and estate issues. Consult a tax advisor for specifics.
Resolving buyouts: If you can obtain financing or an offer from one owner to buy the others interest, courts often approve buyout agreements as an alternative to dispute litigation.

When probate matters

If the decedents estate has not been distributed, check whether a personal representative must be appointed and whether the estate holds title. Sometimes a partition action cannot divide property that still belongs to an estate until the probate court distributes or authorizes sale. Coordinate actions between probate and civil counsel to avoid conflicting orders.

What a court can order

The court can:

Order partition in kind (physical division) when possible;
Order a court-supervised sale and distribution of net proceeds;
Appoint a commissioner or receiver to conduct sale or allocate parcels;
Rule on payment of debts, liens, taxes, and costs before distribution;
Allocate credits for improvements, taxes paid, or necessary repairs as the court finds fair.

When to consider alternatives to filing

Mediation or arbitration to avoid litigation costs.
Negotiated buyout with professional appraisal and escrow for payment.
Sell the property privately if you can get cooperation from a majority owner or offer an incentive to the holdout.

Bottom line: Filing a partition action in Hawaii is a formal civil process requiring a complaint in circuit court, naming all owners and encumbrancers, service of process, appraisal, and court supervision of either physical division or sale. Because probate status, liens, and title defects complicate these cases, organize documentation early and strongly consider legal help.

Helpful Hints

Document everything in writing: written demand letters, offers, and responses. Courts prefer to see evidence of attempts to resolve the dispute.
Gather these documents before filing: the deed, death certificate, probate documents (if any), current mortgage statements, property tax bills, insurance info, and a recent property survey if available.
Get at least one independent appraisal to establish current market value.
Name all possible parties in the complaint, including lienholders and possible heirs; missing parties can derail the action.
Consider mediation early — it often saves money and time compared to a contested partition trial.
Budget for costs: court fees, commissioner or receiver fees, appraisal and survey costs, advertising for sale, and attorneys fees if you hire counsel.
File in the circuit court for the island where the property sits. Check the Hawaii Judiciary site for local procedures: https://www.courts.state.hi.us/.
If you cannot find a co-owner, investigate service by publication rules; the court requires evidence of diligent attempts to locate the person before permitting publication.
Talk to a local real property attorney early — even an initial consultation can outline likely outcomes and cost estimates tailored to your property and situation.