How to Start a Partition Action in New York When a Co-Owner Refuses

Detailed Answer

If you (one co-owner) want to force a division or sale of real property in New York because another co-owner refuses to agree, you start a partition action under New York law. Partition actions are governed by the Real Property Actions and Proceedings Law (RPAPL), commonly called “partition” cases. The case is brought in the New York State Supreme Court in the county where the property is located. Relevant statutory authority is in RPAPL Article 9 (see the statutes starting at RPAPL § 901): https://www.nysenate.gov/legislation/laws/RPA/901.

Step-by-step: How to start a partition action in New York

1. Confirm the property ownership and interests.

   Get a certified copy of the deed and any mortgages, liens, or recorded instruments at the county clerk/land records office where the property is recorded. Determine the form of ownership (tenancy in common, joint tenants, tenants by the entirety, life estate). A tenant by the entirety or certain life-estates can limit your options—tenancy by the entirety, for example, generally prevents one spouse from forcing a partition against the other.

2. Try a pre-suit resolution.

   Send a written demand that explains you seek partition (offer a buyout or split sale proceeds). Courts often expect parties to attempt negotiation or mediation first. Keep copies of correspondence—these help show you tried to resolve the dispute.

3. Choose the correct court and prepare the complaint.

   File a partition complaint in the New York State Supreme Court in the county where the property is located. The complaint should state the property description, the plaintiff’s interest, the names (and last known addresses) of all other persons who have any recorded or unrecorded interest, any mortgages or liens, and the relief sought: partition in kind (divide the land) or partition by sale (sell and divide proceeds). Cite RPAPL Article 9. The court may order partition in kind if practicable, and if not practicable, it will order a sale. (See RPAPL.)

4. Join all necessary parties.

   All persons with a recorded or known interest in the property should be named as defendants. That includes co-owners, mortgagees, lienholders, tenants with recorded interests, and anyone claiming title. If you can’t locate a person, New York procedures allow substitute service or service by publication in some circumstances—your attorney can advise.

5. File the complaint and serve process.

   After filing, serve the summons and complaint on all defendants under the CPLR rules (in-person, mail with acknowledgement, or permitted substituted service). The court will assign an index number and schedule further steps. For filing and court information, see the New York State Unified Court System: https://www.nycourts.gov/.

6. Respond to answers, counterclaims, and preliminary motions.

   Defendants may answer, contest title, assert offsets, or bring counterclaims. The court may hold motion practice on jurisdiction, parties, or requests for preliminary injunctive relief (for example, a request that no party be allowed to sell or encumber the property while the case proceeds).

7. Default or contested practice.

   If defendants do not appear or answer, you can move for a default judgment and a decree of partition. If contested, the case proceeds through discovery, and the court will determine whether partition in kind is practicable.

8. Referee appointment and partition execution.

   If the court orders partition, it typically appoints a referee or commissioner to implement the partition. The referee may arrange a physical division (partition in kind) or a public sale. The referee prepares an accounting showing how proceeds are divided after paying mortgages, liens, costs, and sale expenses.

9. Distribute proceeds and resolve liens.

   Sale proceeds are applied to satisfy mortgages and liens in their order of priority; remaining funds are distributed to co-owners according to their ownership shares, minus court-awarded costs and expenses. If there is a mortgage, expect the mortgagee to be named and paid from sale proceeds.

Timing and costs

Expect several months to a year (or longer) depending on complexity, number of parties, title disputes, and court backlog. Costs include court filing fees, service fees, attorney fees, referee fees, appraisal and survey costs, and sale expenses. The court can allocate certain costs; however, typically each side pays its legal fees unless the court orders otherwise.

What to watch for (common complications)

• Title defects, competing claims, or missing parties that delay the case.
• Ownership forms that limit partition (e.g., tenancy by the entirety for married couples).
• Mortgage lien priority—mortgages survive partition and sale proceeds must pay them.
• Requests for injunctive relief to prevent encumbrance or sale during litigation.
• Bankruptcy filings by any party can immediately stay partition proceedings.

Helpful Hints

• Collect the deed, mortgage, tax bills, and any written agreements among owners before you file.
• Ask the county clerk for a property plat map or prior surveys; a current survey and appraisal speed the referee’s job.
• Consider a buyout offer or mediation early—court-ordered sales often net less after costs than an agreed sale.
• Name mortgagees and lienholders in the complaint so the eventual sale clears title properly.
• If a co-owner cannot be located, consult an attorney about service by publication and the extra steps required.
• Check whether ownership is by tenancy by the entirety—if so, you may not be able to force partition against a spouse.
• Use the New York State Unified Court System’s self-help pages for forms and local filing rules: https://www.nycourts.gov/courthelp/.
• If you cannot afford a private attorney, search for legal aid organizations in the county where the property is located or contact the local bar association for a referral.