Partition Actions in New York: NY Real Estate Law Basics

Real Estate

When a dispute occurs with co-owners of real property in New York it is, often, advisable to initiate a partition action. Under New York’ Partition Law, a partition is a remedy available to any person who is a co-owner of New York real property.  Specifically, under N.Y. Real Prop. Acts. Law § 901, the following individuals with New York real property may lawfully apply for a partition of the NY property:

  1. A person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners.
  2. A person holding a future estate as defined in sections forty, forty-a or forty-b of the real property law or a reversion as joint tenant or tenant in common may maintain an action for the partition of the real property to which it attaches, according to his respective share, subject to the interest of the person holding the particular estate, but no sale of the premises in such an action shall be made except with the consent in writing, to be acknowledged or proved and certified in like manner as a deed to be recorded, of the person owning and holding such particular estate. If partition or sale cannot be made without great prejudice to the owners, the complaint shall be dismissed; dismissal shall not affect the right of any party to bring a new action after the determination of such particular estate.
  3. A person entitled as a joint tenant or a tenant in common by reason of his being an heir of a person who died holding and in possession of real property, may maintain an action for partition, whether he is in or out of possession, notwithstanding an apparent devise to another by the decedent, and possession under such a devise. The plaintiff shall establish that the apparent devise is void.
  4. In the event the estate of a decedent is the owner of an estate in common in real property, the executor or administrator may bring a partition action or intervene in a pending partition action on behalf of the estate if, upon application duly made, the surrogate approve

There are two ways to effectuate a partition of real estate in New York:

  1. the parties can come to an agreement for voluntary partition; or
  2. an owner of the real property may file a partition action in NY to obtain a judicial ruling on the division of the property.

New York Partition in Kind & Partition by Sale

A partition can be effectuated in two different way.  A partition in kind physically divides the property so that each party has their own portion which they hold as sole owner.  A partition by sale, which is the most common form of partition in New York, is when the New York property at issue is sold at auction and the co-owners divide the proceeds.
Tenancy in Common versus Joint Tenancy in New York

A partition action must divide the premises according to the type of tenancy that the parties originally had when they took ownership of the property in New York.  There are two main types of joint tenancies in New York.  If the parties petitioning for a partition were tenants in common, then they can divide the property according to the percentage that each party contributed to the original acquisition of the property or according to the contractual agreement governing the ownership.

In a tenancy in common, the parties each own the property with interests according to the amount that they contributed to its purchase.  In a joint tenancy, two or more tenants own the property in equal shares and, depending upon the language in the deed, may have rights of survivorship.  If the parties petitioning for a partition were joint tenants, then they must divide the property equally between the owners.

Regardless of the type of tenancy, any mortgagor or lender with a lien on the property in the amount of the outstanding loan must monetarily satisfied before the parties can divide, transfer, or sell the property (New York lien theory).

New York Judicial Partition Procedure

In a judicial proceeding for a partition, a joint tenant or tenant in common establishes his / her entitlement to a partition by demonstrating his / her ownership and right to possess the property at issue. The remaining issue to determine is whether the equities favor the defendant’s refusal to partition the property.  It goes without saying that a judicial proceeding for a partition is an action that must be handled by an experienced New York real estate attorney with litigation experience in New York courts.

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