Massapequa Real Estate Attorney
When two or more parties or entities own a single piece of property but cannot continue the shared tenancy for any number of reasons, the future of that real estate property can look complicated. In order to amicably be removed from the property, the parties may apply to the Court for Partition under Article 9 of the Real Property and Proceedings Law in New York to pursue a partition action. When done correctly, a partition action will fairly divide shares of the property through a sale among current tenants or owners. When done incorrectly, it could cause even more problems or delays with the real estate transaction.
Divvying Up Property with Partition Actions in New York
Any real property – such as land, condominiums, shares of a cooperative apartment, and even a leasehold – can be partitioned by tenants in common. In a partition action, the overseeing court forces the sale of the property through auction by the sheriff when it cannot be physically “partitioned” without great prejudice to the owners. Since keeping two parties together when they wish to be apart can be more than problematic, the court will rarely not allow a partition action when it is desired.
Situations in which partition actions are particularly useful include:
- Unmarried couples: Consider an unmarried couple who purchases property together and break up before ever marrying. Deciding who should keep the property in such an intricate could be impossible. Partition actions can force a sale and fairly split the profits.
- Inherited property: When part of the property is conveyed by inheritance, it often creates a situation where the beneficiary wants to cash out the equity in the property. Or, the executor of the estate forces a sale when marshalling the assets of the estate. The conflict of interests can be resolved with a partition action.
- Company assets: Commercial property owned by a company or companies, especially those with multiple executives, could be subject to multiple claims of ownership. The parties may need to use a partition action to decide how the property should be sold if the business shutters.
- Divorced couples: A married couple that held property as joint tenants will become tenants in common after they divorce. A partition action can help create a final legal decision regarding what to do with the tenancy so long as the divorce settlement agreement does not give exclusive occupancy to one spouse.
Even though spouses that own property as a tenancy by the entireties is converted to tenants in common, they are not allowed to move for partition until a reasonable time has elapsed, such as a few years. If you have recently divorced, be sure to double-check your divorce agreement for any details regarding property ownership or partition actions.
Accounting for Property Expenses
While not in the statute, New York case law allows for a hearing to determine the appropriate accounting between the tenants in common, as they are described. Unless one party is ousted, all tenants must contribute to the expenses of the property, including the mortgage principal and interest, insurance, taxes, and necessary repairs. One party cannot sit idly by while the other party or parties pay for the property and its upkeep without remuneration.
The paying parties are entitled to reimbursement from the other party’s share. If one party ousts the other party, however, then the ousted party does not have to reimburse for these charges. The idea of contribution stems from the fact that any owners may possess any part of the property and as with any other number of owners. If one thwarts that benefit, they risk losing contribution. There could also be a counterargument of the recovery or improvements that are over and above necessary repairs if they appreciate the value of the property under a theory of unjust enrichment.
Settling a Partition Action Case with Our Help
Most partition action cases are resolved before an actual sale, with one party generally buying out the other party’s interest. In less common circumstances, the parties agree on an amount that each party shall receive they agree to voluntarily sell as opposed to an auction. Since partition actions can be concluded in a variety of ways, it is often considered one of the most complex forms of real estate litigation. In order to navigate the situation successfully, you will want to find a law firm with experience specific partition action case types. At James J. Quail & Associates, P.C., our partition action lawyer in Massapequa has the real estate litigation knowledge and know-how needed to protect your best interests against any complication.