Detailed answer — What to expect when mediation fails and you file a partition action in New York
If mediation does not resolve your dispute over jointly owned land in New York, a partition action is the usual next step if one or more owners want to force a division or sale of the property. In New York, partition actions are governed by the Real Property Actions and Proceedings Law (RPAPL), and are brought in the Supreme Court (the state trial court).
Who can start a partition action?
Any person with a legal or equitable interest in real property may maintain a partition action. The statute that governs who may bring the action can be found in RPAPL § 901. See: RPAPL § 901 and the full partition article at RPAPL Article 9 (Partition).
Basic steps in a New York partition action
- File the complaint in Supreme Court: The complaint names the parties who hold interests in the property, describes the ownership interests, and asks the court to order partition (division of the land) or sale and distribution of proceeds.
- Service and response: Each person with an interest must be served with the complaint. Defendants then have the opportunity to answer and raise defenses or counterclaims.
- Pretrial procedures and evidence: The court may require proof of title, deeds, mortgages, liens, and evidence about whether physical division of the land (partition in kind) is practical without prejudice to its value.
- Court decision — partition in kind vs. partition by sale: If the court finds the property can be fairly divided into separate lots without undue prejudice to the owners, it may order partition in kind (actual division). If division is impractical or would substantially reduce value, the court will order sale and distribution of the proceeds.
- Appointment of commissioners or a referee: The court commonly appoints commissioners or a referee to examine the property, prepare a plan of division, perform appraisals, and conduct a sale if ordered. The referee’s or commissioners’ report goes back to the court for approval.
- Sale and distribution: If the court orders a sale, it will typically be conducted by the appointed referee or a commissioner (public auction or private sale under court supervision). Sale proceeds are applied to liens, costs, and then distributed to owners according to their interests.
What happens to mortgages, liens, and costs?
Liens and mortgages that encumber the property generally must be paid out of sale proceeds before net proceeds are split among owners. Court costs, appraiser and referee fees, auction costs, and statutory sale commissions are also paid from the proceeds. The court orders the priority of payments during distribution.
Can a co-owner buy the property instead of selling to a third party?
Yes. Before a public sale, co-owners often have the opportunity to buy out other owners by paying their proportionate share of fair market value. The court may set procedures and deadlines for a buyout. If a co-owner successfully purchases other shares at sale, they receive clear title through the court-ordered conveyance.
Timing: how long will the process take?
Timing varies. Simple partition cases where property can be divided may resolve in several months. Cases that require appraisals, litigated title issues, or a court-ordered sale typically take longer — often a year or more. Complex disputes (multiple parties, liens, objections to commissioners’ reports) extend the timeline.
Possible outcomes and implications
- Partition in kind: each owner receives a physically divided parcel (less common in urban, small-lot, or irregular properties).
- Partition by sale: property sold and net proceeds divided among owners per their ownership shares.
- Settlement/Buyout: parties agree on a buyout or other division and dismiss the action.
- Costs and credits: the court can award credits for improvements, account for rents and profits, and adjust distributions for payments made by particular owners.
- Clear title to purchaser: the court-supervised sale typically conveys clear title through a referee’s deed approved by the court.
Where to read the law
Partition law in New York is in RPAPL Article 9. See the article page here: RPAPL Article 9. For who may maintain a partition action, see RPAPL § 901.
Note: This is a general overview. Specific facts (e.g., type of ownership—joint tenancy or tenants in common, presence of mortgages or liens, local court practices) can affect strategy and outcome.
Disclaimer: I am not a lawyer and this is not legal advice. This article explains general New York law and should not replace consulting an attorney who can apply the law to your situation.
Helpful hints — Practical steps if mediation fails and you’re considering partition
- Gather documents: deeds, mortgages, surveys, tax bills, lease agreements, insurance policies, and any records of payments or improvements.
- Get a valuation early: an appraisal or comparative market analysis helps assess whether division in kind is practical and what a buyout price should be.
- Communicate options: before filing suit, give co-owners a written buyout proposal — courts like to see efforts at settlement.
- Consider cost vs. benefit: partition suits can be costly; weigh likely net proceeds after costs and liens against alternatives like negotiated sale or buyout.
- Protect the property: if the property is being damaged, consider interim relief from the court (e.g., injunctions) to stop waste or unauthorized alterations.
- Know lien priorities: mortgage holders and judgment creditors may assert claims that reduce your share of proceeds—identify and quantify them early.
- Ask about local practice: county-level Supreme Courts may have particular procedures for referees, appraisal deadlines, or sale formats—your lawyer should know these local rules.
- Consider tax consequences: sale or buyout may trigger capital gains or other tax events—consult a tax professional.
- Get legal help: a lawyer experienced in New York partition actions can prepare pleadings, negotiate buyouts, and represent you at hearings and sale.