What a partition action is and when it applies

A partition action is a court process that allows co-owners of real property to divide the property or force its sale when owners cannot agree. In New York, partition actions are governed by the Real Property Actions and Proceedings Law (RPAPL). See RPAPL (Real Property Actions and Proceedings Law): https://www.nysenate.gov/legislation/laws/RPA.

Common situations after a parent dies where partition may be relevant:

• The decedent’s interest passed to multiple heirs or beneficiaries who are now co-owners (typically as tenants in common).
• The property is held jointly but a surviving co-owner or heir disputes ownership or refuses to sell.
• No one can reach agreement on selling or dividing the property.

Key preliminary questions to answer

1. How did title to the house stand at the decedent’s death? (Sole ownership, joint tenancy, tenancy in common, or owned in trust.)
2. Was there a will and has the estate been probated? If so, who is the executor or personal representative?
3. Are there mortgages, liens, or unpaid taxes on the property?
4. Who is in possession and maintaining the property?

Understanding title and whether probate has been opened is essential. If probate is open and the executor controls title, that affects who you sue and how the property is handled.

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

Below is a practical roadmap. Timelines and documents vary by county.

1. Confirm ownership and gather documents.
   • Obtain deed(s) from county clerk and recent title report or conduct a title search.
   • Get death certificate, will (if any), probate papers (Surrogate’s Court), mortgage and tax records, and any leases or occupancy info.
2. Try to resolve the matter informally.

   Courts favor voluntary solutions. Talk to co-owners about selling, one party buying out others, or mediation. Document offers in writing.

3. Decide who to name as parties and where to file.

   Partition actions are filed in the Supreme Court of the county where the property sits. You must name all co-owners and anyone with a recorded interest (mortgage holders, lienholders). If the decedent’s estate or personal representative still holds legal title, include them in the case.

4. Prepare and file the court papers.

   Typical papers include a summons and verified complaint for partition specifying your ownership interest, a legal description of the property, and relief sought (division in kind or sale). Court forms and local practice vary—your county clerk or a New York real estate attorney can help prepare pleadings. Partition procedures and remedies are governed by RPAPL. See RPAPL: https://www.nysenate.gov/legislation/laws/RPA.

5. Serve the papers on all necessary parties.

   Service must follow New York civil procedure rules. The court cannot proceed until properly served and returned.

6. Attend court conferences and discovery.

   The court may schedule conferences, require disclosures (title documents, tax records, accountings), and may encourage settlement or appraisal.

7. Court determines partition in kind or sale.

   New York courts prefer a physical division (partition in kind) when it is fair and practicable. If division is impractical or inequitable, the court will order a sale and appoint a referee/commissioner to sell the property and report back to the court. The court supervises the sale and distribution of proceeds after paying liens, taxes, and court-ordered costs.

8. Sale and distribution of proceeds.

   Proceeds are divided according to ownership shares after satisfying mortgages, liens, property taxes, and sale costs. If owners disagree about claims against proceeds (for repairs, rents, or mortgage contributions), request the court order an accounting before distribution.

Practical and legal issues to expect

• Mortgage and lien priorities remain attached to the property; proceeds from a partition sale normally pay secured creditors first.
• If title was only in the decedent’s name and the estate hasn’t been administered, you may need to open probate (Surrogate’s Court) or obtain letters of administration before clear distribution occurs.
• Partition litigation can be lengthy and costly—expect months to more than a year depending on complexity, objections, and whether the sale is contested.
• Court can award expenses (including upkeep, property taxes, and necessary repairs) and adjust distributions accordingly.

When you should consult an attorney

Consider hiring a New York real property attorney if any of the following apply:

• Title, probate, or ownership is unclear.
• There are substantial mortgages, judgments, or tax liens.
• Co-owners live in different states or refuse to cooperate.
• You need help preparing pleadings, preserving property, or protecting your share of proceeds.

Helpful Hints

• Get a certified copy of the death certificate and a copy of any will or Surrogate’s Court file early.
• Pull the deed and run a title search with the county clerk to identify all recorded interests and liens.
• Collect proof of contributions (mortgage payments, taxes, repairs) if you expect an accounting; these can affect net distributions.
• Keep the property insured and secure; courts may order parties to maintain insurance during litigation.
• Explore a buyout: one co-owner can buy others’ interests using an independent appraisal and formal settlement—this often costs less than litigation.
• Consider mediation or neutral appraisal early—courts often encourage alternative dispute resolution to avoid costly sales.
• Check local Supreme Court rules or the county clerk’s office for filing costs, required forms, and procedural details specific to the county where the property is located.