Detailed Answer
This guide explains the practical steps to start a partition lawsuit in Hawaii to divide inherited real property when co-owners will not agree. This is educational information only and is not legal advice. Consult a licensed Hawaii attorney before starting any court action.
What a partition action is and when it applies
A partition action is a court lawsuit that asks a court to divide property owned by two or more people (co-owners) when those owners cannot voluntarily agree on use, sale, or division. Partition suits commonly arise after an owner dies and heirs inherit real property but cannot agree on how to keep, sell, or divide the land.
In Hawaii, partition procedures and remedies are governed by state law. For the statutory framework, see Hawaii Revised Statutes, Chapter 669 (Partition): https://www.capitol.hawaii.gov/hrscurrent/Vol13_Ch0601-0676/HRS0669/.
Before filing: confirm ownership and try to resolve the dispute
1) Confirm who owns the property. Collect the deed(s), the probate file or estate distribution documents, and any recorded instruments. Determine whether title is held as tenancy in common, joint tenancy, or another form. Partition actions normally involve co-owners (often tenants in common) who each hold an undivided interest.
2) Try negotiation or mediation. Courts generally prefer disputes resolved without litigation. Offer a buyout, propose a voluntary sale and split proceeds, or use a neutral mediator to help reach agreement.
When you proceed: key steps to start a partition lawsuit in Hawaii
- Choose the proper court. Real-property partition actions are filed in the Hawaii Circuit Courts. For locations and general information, see the Hawaii Judiciary: https://www.courts.state.hi.us/courts/circuit_courts.
- Prepare the complaint. The complaint should identify the plaintiff(s) (the co-owner(s) asking for partition), the defendants (all other co-owners and anyone with an interest in the property), a legal description of the property, the nature of each party’s claimed interest, and the relief requested (partition in kind or partition by sale, appointment of a commissioner, accounting for rents/expenses, and an order for distribution of proceeds).
- File the complaint and pay fees. File in the circuit court in the county where the property is located. The court clerk will assign a case number and issue summonses.
- Serve all parties. Proper service of the summons and complaint on every person with a recorded or claimed interest is required. If some parties are missing or unknown, the court may permit service by publication or other methods in accordance with Hawaii law.
- Responding pleadings and preliminary proceedings. Defendants have the opportunity to answer, file counterclaims, or raise defenses (for example, disputing ownership or claiming that partition would be inequitable). Parties can move for temporary orders regarding possession, rents, insurance, or maintenance costs while the case proceeds.
- Appraisals, surveys, and evidence. Expect the court to require appraisals and possibly a land survey to determine whether division in kind is physically possible without unfairly harming owners. If an in-kind division is not feasible, the court will typically order a sale (public or private) and an accounting.
- Appointment of a commissioner. If partition is ordered, the court may appoint a disinterested commissioner to prepare a report, conduct the division or sale, and handle the mechanics of transfer and distribution of proceeds.
- Distribution of proceeds and credits. The court will allocate proceeds after payment of liens, costs of the action (including the commissioner’s fees), and equitable adjustments for contributions (for example, payments of mortgage, taxes, or improvements). Keep records of expenses you paid that benefited the property; you may be entitled to credit or reimbursement.
Partition in kind vs. partition by sale
A partition in kind divides the land so each owner receives a separate parcel. Courts prefer in-kind division when it’s practical and fair. Partition by sale converts the property into cash if physical division would be impracticable or would diminish value or the owners’ interests. The court decides based on physical characteristics, improvements, and fairness among owners.
Practical considerations, timeline, and costs
Partition litigation can be lengthy and expensive. Expect several months to over a year depending on complexity, discovery disputes, appraisals, and whether the case settles. Costs include filing fees, service costs, attorneys’ fees, appraisers, surveyors, and the commissioner’s fees. Consider whether a negotiated outcome (sale, buyout, or shared management) is cheaper.
Records and evidence to gather now
- Deeds, probate papers, and title search results
- Mortgage statements, tax bills, homeowner association records, insurance policies
- Receipts for improvements, repairs, and property expenses
- Photographs, maps, and any existing land survey; Hawaii parcel identification is often called a Tax Map Key (TMK) number—check your county tax office
- Communications (emails, letters, texts) showing attempts to negotiate or any agreements
When to hire an attorney
Because partition involves specialized procedural and property issues—and because mistakes can permanently affect title and money—consult with a licensed Hawaii attorney experienced in real property litigation or probate matters. An attorney can prepare pleadings, advise on strategy (mediation vs. litigation), handle service and discovery, and protect your financial interests in court.
Statutes and court resources
Primary statutory guidance is in Hawaii Revised Statutes, Chapter 669 (Partition): https://www.capitol.hawaii.gov/hrscurrent/Vol13_Ch0601-0676/HRS0669/. General circuit court information is available from the Hawaii Judiciary: https://www.courts.state.hi.us/courts/circuit_courts.
Important: This article explains general procedures and practical steps under Hawaii law and is not legal advice. Laws change, and individual circumstances differ. Talk with a licensed Hawaii attorney to apply the law to your situation.
Helpful Hints
- Start by collecting deeds, probate papers, the property’s Tax Map Key (TMK), mortgage and tax records, and any surveys or appraisals.
- Send a clear written demand to co-owners explaining the relief you seek (buyout, sale, or partition); keep copies of all communications.
- Attempt mediation before filing. Courts view settlement efforts favorably and mediation can save large legal costs.
- Get a professional appraisal early to understand value and whether in-kind division is practical.
- Keep detailed records of payments you make for mortgages, taxes, insurance, and improvements—these may affect distribution of proceeds.
- Be prepared for costs: litigation can consume a substantial portion of the property’s value if contested at every stage.
- If one owner wants out, consider a buyout formula (owner pays fair market value for the co-owner’s share) to avoid court costs.
- Consult both an attorney (for legal strategy and filings) and a tax advisor (sale or distribution can trigger tax consequences).
- If parties are missing or incapacitated, discuss with counsel how the court permits service by publication or appointment of a guardian ad litem.
- Expect the court to order a commissioner, survey, or sale if the property cannot be fairly and practically divided.