What to do when a co‑owner heir lives in inherited real property and won’t move or agree to sell (New York)

Short answer: In New York the usual legal remedy is a judicial partition. A co‑owner who lives on the property cannot be forcibly removed simply because they occupy it — but you can ask a court to divide the property (partition in kind) or force a sale and split the proceeds (partition by sale). You can also seek an accounting for rents and profits or a temporary receiver in some circumstances. This page explains how those options work and what practical steps to take.

Detailed answer — how New York law treats an occupying heir who refuses to move or sell

1) Who owns the property?

When a property is inherited, heirs typically take as tenants in common unless the deed or will creates a different form of ownership (for example, joint tenancy). Tenants in common each own an undivided fractional share and have a right to possess the whole property, so simply occupying the premises does not by itself defeat your ownership interest.

2) Partition actions — the primary legal remedy

If co‑owners cannot agree, New York law provides a statutory remedy: a partition action in the Supreme Court. The Real Property Actions and Proceedings Law (RPAPL) contains the rules courts use when a co‑owner asks the court to divide or sell property. See RPAPL (partition provisions) for statutory text: https://www.nysenate.gov/legislation/laws/RPAPL/901.

Key points about partition:

• Partition in kind: The court prefers to physically divide the property when it is practicable (for example, raw land that can be split into separate lots).
• Partition by sale: If division in kind would be impractical or inequitable (typical for a single family home in a city or suburban neighborhood), the court can order a sale and divide the net proceeds among the owners according to their shares.
• Practical mechanics: A judge often appoints a referee or special master to handle a sale, set terms, and distribute proceeds after paying liens, costs, and commissions.

3) Accounting for use and occupation; rents and profits

An occupying co‑owner who exclusively uses the property may be required to account to the other owners for use and occupation — essentially a claim for rent or an offset — particularly if the occupying owner’s conduct excludes the other co‑owners from use. Courts will look at the facts: who paid mortgage, taxes, repairs, and who benefitted from improvements. You can ask the partition court for an accounting or for the appointment of a receiver to collect rents or manage the property during litigation.

4) Ejectment and eviction are rarely the first remedy

Because the occupier is likely a co‑owner, a standard landlord/tenant eviction (summary proceeding) is usually not available. You cannot evict a co‑owner simply because they are a co‑owner. If the occupier is someone else (a holdover non‑owner or a trespasser), eviction remedies apply. If the co‑owner’s conduct amounts to waste, destruction, or conversion of the property, you can seek additional relief from the court.

5) Buy‑outs, negotiation, and mediation

Partition litigation is costly and can be slow. Many co‑owners first try to negotiate: one party buys the other’s share (often priced using a recent appraisal minus buy‑out credits for repairs, mortgage, or unpaid taxes). Mediation or a neutral valuation often solves the dispute faster and with lower costs.

6) Timing, costs, and practical effects

• Timeline: Partition actions can take many months to over a year, depending on complexity, appraisal, and sale processes.
• Costs: Court fees, attorneys’ fees, referee or receiver fees, sale commissions, and other litigation expenses reduce the net proceeds.
• Mortgage and liens: Mortgages and liens survive a partition sale; the sale proceeds pay liens before owners receive their share.

Typical procedure to pursue a partition or related relief in New York

1. Confirm ownership: Collect the deed, will, probate papers, and any title reports showing who owns what share.
2. Demand and negotiate: Send a clear written demand asking the occupant to vacate, sell, or allow an appraisal; propose buy‑out or mediation.
3. File partition action: If negotiation fails, file in Supreme Court in the county where the property lies. The complaint asks for partition in kind or, if impractical, a sale.
4. Interim relief: Ask the court for a receiver, accounting, or an order on use and occupation if immediate relief is needed.
5. Appraisal and sale: If the court orders sale, a referee or court process will set the terms and handle the sale.
6. Distribution: After paying debts, costs, and commissions, the court distributes proceeds according to ownership shares.

When you might get additional or different relief

• Bad faith conduct (fraud, destruction, concealment of assets): the court can award damages or special remedies.
• Unequal equities: If one heir contributed more to purchase price, mortgage payments, or improvements, equitable adjustments may change the final split.
• If the property is part of a probate estate still under Surrogate Court jurisdiction, coordinate claims between Surrogate’s Court and Supreme Court; an attorney can advise whether partition should wait or proceed.

Helpful links

• New York Real Property Actions and Proceedings Law (RPAPL) — partition provisions: https://www.nysenate.gov/legislation/laws/RPAPL/901
• New York State Unified Court System — self‑help information (partition and property cases): https://www.nycourts.gov/courthelp/HowTo/partition.shtml (general guidance)

Helpful Hints

• Start by gathering documents: deed, will, probate paperwork, mortgage statements, tax bills, and records of repairs or rent payments.
• Get a current appraisal before negotiating a buy‑out; know the market value and costs to sell.
• Try mediation or a written buy‑out offer first — it’s usually cheaper and faster than court.
• If you must litigate, ask for interim relief (receiver, accounting) to protect your share while the case proceeds.
• Keep careful records of any rent, utilities, repairs, or improvements; these facts affect accounting and equitable adjustments.
• Consider the mortgage: a buyer at a partition sale often takes subject to the mortgage; unpaid mortgage and taxes reduce the net proceeds.
• Talk to an attorney who regularly handles New York partition cases to evaluate costs, likely outcomes, and local court practice.

Disclaimer: This article is for general information only and does not create an attorney‑client relationship. It is not legal advice. For advice about your specific situation, consult a licensed New York attorney who can review the facts and documents and explain your options.