Detailed Answer
Under New Jersey law, a partition action divides or sells real estate owned by two or more co-tenants. Any co-tenant may file a lawsuit to force a partition in kind (division of the property) or, if division is impractical, a sale. The court then appoints a commissioner to carry out the division or sale and report back.
1. Determine Co-Ownership Status
Identify whether the property is held as tenants in common or joint tenants. In New Jersey, joint tenancy requires unity of time, title, interest and possession. Tenancy in common does not require these unities. Either type of co-ownership may lead to a partition action.
2. File a Complaint for Partition
Prepare and file a complaint in the Superior Court of New Jersey, Chancery Division, General Equity Part. The complaint must:
- Describe the property with a legal description.
- Name all co-tenants and their respective interests.
- Specify whether you seek partition in kind or by sale.
- Reference the authorizing statute, N.J.S.A. 2A:63-1.
3. Serve All Co-Tenants
Serve each co-tenant with a summons and a copy of the complaint under the rules of civil procedure. If any party cannot be located, seek substituted service or publication per Court Rule 4:4-4.
4. File Proof of Service and Await Response
File proof of service with the court. Defendants have 35 days to file an answer or a motion under Court Rule 4:5-3.
5. Appointment of a Court-Appointed Commissioner
If the parties do not settle, the court issues an order appointing a commissioner under Court Rule 4:42-1. The commissioner is a neutral third party—often an experienced attorney—tasked with inspecting the property, evaluating division feasibility, and recommending sale if necessary.
6. Inspection, Report and Proposed Partition
The commissioner visits the property and prepares a written report. This report outlines:
- Whether the property can be fairly divided.
- An allocation of the divided parcels among co-tenants, if partition in kind is feasible.
- A recommendation of sale if physical division would unfairly reduce value.
If a sale is recommended, the court issues a writ of partition directing the sale under N.J.S.A. 2A:37-1. The commissioner oversees marketing, bidding and closing.
7. Consent to Partition (Uncontested Cases)
When all co-tenants agree on how to divide or sell the property, they may file a stipulation of consent. The stipulation should:
- Describe the agreed division or sale process.
- Appoint the commissioner by name.
- Attach a proposed order for the judge’s signature under Court Rule 4:42-2.
This streamlined process avoids contested hearings and speeds up resolution.
8. Final Decree and Distribution
After the commissioner’s report or sale, the court issues a final decree of partition. This decree:
- Confirms the division or sale.
- Directs transfer of clear title to divided parcels or sale proceeds.
- Allocates costs, including commissioner’s fees, among co-tenants.
Helpful Hints
- Obtain a current survey to avoid boundary disputes.
- Consider mediation if co-tenants disagree on division.
- Collect title documents and deeds before filing.
- Discuss potential tax implications of a sale or division with an accountant.
- Be aware that commissioner fees and court costs are split among all co-tenants.
- Allow several months for contested actions; uncontested cases may conclude faster.
- Keep detailed records of all filings and communications.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney to address your specific situation.