Detailed answer

What is a partition action?

A partition action is a court case asking a judge to divide property among co‑owners. If the judge finds a fair physical division (partition in kind) is impossible, the court can order the property sold and divide the sale proceeds among the owners. Hawaii law governing partition actions is found in the Hawaii Revised Statutes, chapter 669 (Partition).

See Hawaii Revised Statutes, chapter 669: HRS ch. 669 (Partition).

Who can bring a partition action in Hawaii?

Typical parties who can bring a partition action:

• A co‑owner of the real property (for example, a sibling who already owns an undivided interest).
• The personal representative or executor of the decedent’s estate, if the decedent’s ownership interest is still part of the estate.
• An heir whose title to the decedent’s interest has vested (after probate or by operation of law).

Note: If the decedent held the property as joint tenants with rights of survivorship, the decedent’s interest may have passed automatically to the surviving joint tenant(s) and not become part of the estate. That affects whether a partition action is available.

For how ownership passes after death, see Hawaii’s intestate succession and probate rules: HRS ch. 560 (Wills, Intestate Succession, and Administration).

Step‑by‑step: How to file a partition action in Hawaii

1. Confirm who owns what.

   Obtain the deed(s) from the Bureau of Conveyances (or the land court) to confirm title, how the decedent held title, and the names of co‑owners. If the decedent died, get a certified copy of the death certificate and any probate documents showing who the personal representative or heirs are.

2. Determine standing and whether the interest is in the estate.

   If title passed by survivorship, there may be no estate interest to partition. If the decedent’s share is part of an estate, the personal representative or an heir with legal title may file. If multiple heirs own undivided shares (tenancy in common), any co‑owner can seek partition.

3. Try to resolve before filing.

   Courts prefer parties to reach a private agreement. Consider mediation, negotiated buyout (one owner buys other shares), or selling voluntarily. A negotiated sale often saves time and legal fees.

4. Prepare and file a complaint for partition in the proper court.

   File the complaint in the Hawaii Circuit Court in the district where the property is located. The complaint should identify the property, list all known owners and interested parties (heirs, lienholders, mortgagees), describe each party’s ownership interest, and request the relief: partition in kind or sale and division of proceeds.

5. Serve all parties and interested lienholders.

   After filing, you must serve the complaint and summons on every co‑owner, every person with a recorded lien or mortgage, and any heir or personal representative with an interest. If some heirs cannot be located, the court may allow service by publication under certain conditions.

6. Answer, defaults, and initial court steps.

   Defendants typically file answers or counterclaims. If a defendant fails to respond, the plaintiff may seek a default judgment. The court will evaluate whether a partition in kind is practical. The court can appoint a commissioner or referee to survey and propose a division or handle the sale.

7. If sale is ordered: marketing, sale, and distribution.

   If physical division is impractical, the court orders sale. The court or appointed commissioner will follow sale procedures (public auction or private sale under court supervision). Sale proceeds pay liens, mortgages, costs, and then net proceeds divide among owners according to their interests.

8. Costs, fees, and possible attorney’s fees.

   The court can allocate costs of partition (surveying, appraisals, commissioner fees) between parties. In some cases, attorney’s fees may be awarded if statutory grounds or contract provide. Expect that litigation costs can substantially reduce net proceeds.

9. Timeline.

   A partition case can take several months to over a year depending on complexity, service issues, appraisals, and whether parties contest the case.

Common complications and how they affect the case

• Mortgages and liens: The property’s mortgages survive transfer; sale proceeds pay them first.
• Undisclosed heirs: The court may require additional notice steps or approve service by publication before proceeding.
• Joint tenancy vs. tenancy in common: Joint tenancy typically passes by survivorship and may not be subject to partition of the decedent’s share.
• Homestead or statutory protections: Certain protections or exemptions may affect how proceeds are distributed; check whether any homestead or creditor claims exist.

Where the law is written

Partition rules are in HRS chapter 669. For probate and intestacy rules that affect whether an interest is part of the estate, see HRS chapter 560. You can review the statutes at the Hawaii State Legislature website:

• HRS ch. 669 — Partition (Hawaii Revised Statutes)
• HRS ch. 560 — Wills, Intestate Succession, and Administration

When to get a lawyer

Consider hiring a lawyer if any of the following applies:

• Multiple heirs or unknown claimants exist.
• The title is unclear or transfers at death are disputed (joint tenancy vs. tenancy in common).
• Significant mortgages, liens, or tax issues exist.
• One or more co‑owners refuse to cooperate or contest the partition.

If you decide to hire counsel, look for an attorney experienced in Hawaii real property litigation and probate. The Hawaii State Judiciary and the Hawaii State Bar Association can help you find resources and local rules: Hawaii State Judiciary.

Important disclaimer: This article is educational only and does not create an attorney‑client relationship. It is not legal advice. For advice tailored to your situation, consult a qualified Hawaii attorney.

Helpful Hints

• Start with a title search or pull the current deed at the Bureau of Conveyances to confirm names, vesting, and recorded mortgages.
• Gather key documents before filing: death certificate, will (if any), letters of administration or testamentary, mortgage statements, tax bills, and any prior agreements among owners.
• Ask the probate court whether the decedent’s interest passed to heirs or remains part of the estate—this affects who must file.
• Consider a neutral valuation early (appraisal) so parties know the property’s market value for buyout negotiations.
• Weigh costs: litigation, surveys, and sale expenses can reduce proceeds. A voluntary sale or buyout may be more economical.
• If you can’t locate heirs, the court may permit substituted service (publication), but that adds time and expense—start locating everyone right away.
• Keep records of communications and offers. Courts sometimes view settlement attempts favorably when allocating costs.
• If the property is occupied, address possession and maintenance (who pays insurance, taxes, utilities) while the case proceeds; ask the court for interim orders if needed.