Filing a Partition Action in New York to Divide Inherited Property When a Co-Owner Won’t Cooperate

Detailed Answer

This article explains, under New York law, the typical steps to ask a court to divide or sell real property when you inherited it with another co-owner who refuses to cooperate. The process is called a partition action. This is an explanation for education only and not legal advice.

What a partition action is and when to use it

A partition action asks the Supreme Court (New York’s trial-level court for real property claims) to divide title to land owned by more than one person. If the court can physically divide the land fairly, it may order a partition in kind (each owner gets a portion). If that’s impractical, the court orders a sale and divides the proceeds. New York’s partition laws are in the Real Property Actions and Proceedings Law (RPAPL). See RPAPL (Partition) at https://www.nysenate.gov/legislation/laws/RPAPL.

Practical step-by-step process

1. Confirm ownership and the type of co-ownership. Gather the deed(s), the will or probate papers, death certificate(s), mortgage and tax records. Determine whether title is held as tenants in common, joint tenants, or by an estate administrator. Tenants in common commonly have separate shares and can maintain a partition action.
2. Try to resolve the issue before filing. Send a clear written demand and offer options: sell and split proceeds, buyout of the other owner’s share, or hire a neutral appraiser. Document all communications. Courts often expect you to try settlement before expensive litigation.
3. Get an appraisal and a title search. An independent appraisal helps set a fair buyout or sale price. A title search identifies all persons and liens with an interest in the property—these people must be joined in the lawsuit.
4. Prepare to file a partition complaint in Supreme Court. File in the county where the property sits. The complaint should describe the property, your interest, the other parties with interests, and the relief you seek (partition in kind or sale, appointment of a referee to divide or sell, an accounting of rents/expenses, and distribution of proceeds). You can review partition statutes at RPAPL (see https://www.nysenate.gov/legislation/laws/RPAPL/901 for the action generally).
5. Record a notice of pendency (lis pendens). After filing and obtaining an index number, record a notice of pendency to alert the world a claim affects title. New York’s lis pendens rules are in RPAPL Article 65 (see https://www.nysenate.gov/legislation/laws/RPAPL/650).
6. Serve all parties properly. You must serve all co-owners and anyone who holds an interest in the property according to New York’s service rules (CPLR). Personal service and substituted service rules are in CPLR § 308 (see https://www.nysenate.gov/legislation/laws/CPLR/308). Proper service is essential; errors can delay the case.
7. Ask the court for interim relief if needed. If the other co-owner threatens to waste the property or remove tenants, you can ask for temporary relief (a restraining order, temporary receiver to collect rents, or an accounting of rents and expenses) while the case proceeds.
8. Court determines partition in kind or sale. The court examines whether a fair physical division is feasible. If yes, the court orders partition in kind. If not, the court orders sale. The court typically appoints a referee (often a real estate professional or attorney) to carry out the division or sale and to report back to the court. See RPAPL for the court’s powers and procedures (https://www.nysenate.gov/legislation/laws/RPAPL).
9. Pay liens, costs and divide proceeds. On sale, the referee pays valid liens and expenses (including taxes, mortgage, commissions, referee fees) and distributes net proceeds according to each owner’s legal share after court approval.
10. Closing and final judgment. The court approves the referee’s report and enters a judgment of partition. That judgment finalizes the division or sale and directs distribution of funds and conveyance of title as appropriate.

Key legal points to remember

• Anyone with an ownership or recorded interest must be named as a defendant. Failing to join a necessary party can derail the case.
• Mortgages and liens remain binding; a court-ordered sale normally pays those encumbrances out of sale proceeds.
• Timelines vary. An uncontested partition can take several months; contested cases with complex title issues can take a year or more.
• Costs can include filing fees, referee fees, appraisal fees, attorney fees, and survey costs. Courts sometimes assign costs and may award expenses to a prevailing party in certain circumstances.

Where to find the statutes

New York’s partition and related rules are in the Real Property Actions and Proceedings Law (RPAPL). General partition provisions start at RPAPL § 901 and related provisions in the article. See: https://www.nysenate.gov/legislation/laws/RPAPL/901 and the RPAPL index at https://www.nysenate.gov/legislation/laws/RPAPL. For service rules, see CPLR § 308 at https://www.nysenate.gov/legislation/laws/CPLR/308. For notice of pendency (lis pendens), see RPAPL § 650 at https://www.nysenate.gov/legislation/laws/RPAPL/650.

Helpful Hints

• Document everything: save emails, letters, appraisal reports, receipts for repairs, and proof of attempts to negotiate a settlement.
• Get a competent title search early. It reveals mortgages, judgments, heirs, and other potential defendants you must include.
• Consider mediation or a neutral evaluator before filing; a buyout or voluntary sale often saves time and money.
• If the property generates rent, ask the court for an accounting and for collection of rent while the action proceeds.
• Be realistic about partition in kind: multi-unit or large lots sometimes can be divided; small one-lot suburban parcels usually cannot.
• If the property is in active probate administration, coordinate with the estate’s administrator or executor and the surrogate’s court paperwork.
• Prepare for tax consequences. A sale can trigger capital gains tax and may require withholding or reporting—consult a tax advisor.
• Expect costs. Even a forced sale can produce net proceeds after liens and fees. Compare that result to negotiation or buyout offers before litigating.

Disclaimer: This is general information about New York law and is not legal advice. It does not create an attorney-client relationship. For advice tailored to your situation, consult a licensed New York attorney familiar with real property and partition litigation.