Partitions
Partitions Overview
What is a Partition Action?
A partition action is type of case available to property owners who own property jointly. If the joint owners of real property disagree on how to dispose of the jointly owned property, a partition action is available to any titled owner.
What Relief Can be Granted in a Partition Action?
The theory behind a partition action is that one person cannot be compelled to own property jointly with another if they do not wish to do so. A partition action is an equitable remedy, meaning the court's authority goes beyond a money judgment. In a partition action, the court can direct specific performance.
One possible outcome is the property will be partitioned into smaller lots, giving each joint owner his or her own lot.
If that is not possible, the court will order the property to be sold.
If the Court Orders the Property to be Sold in a Partition Action, How Are the Proceeds Divided?
In general, the proceeds are divided in the same proportion as ownership interest. However, offsets may be available to determine if the expenses and upkeep of the property were not shared. If the property was rented, that income may also act as an offset. Under some circumstances, a party who is excluded from using the property may be entitled to imputed rent due to being deprived of the use of the property.
When is a Partition Action Necessary?
If a couple buys property and do not marry, no relief under equitable distribution is available since DRL 236 B only applies in the context of a matrimonial action. If a couple buys a home jointly before they are married, a partition action will often be necessary as the home is not marital property and the court lacks authority to dispose of it in a divorce action. If a married couple buys a home jointly along with another party, and a divorce is filed, only a portion of the home which is determined to be marital property is subject to equitable distribution. Any portion of the home that is determined to be held by the non spouse is outside the court's authority to dispose of, and a separate partition action is necessary.
In a foreclosure action, very often the homeowner will want to sell the property before it is foreclosed. When only one person owns the property, or if all owners are in agreement, a sale is not a problem. But if one or more owner of the property is not in agreement or is non cooperative, a partition action may be necessary to compel a sale.
Another very common situation is when an owner of property dies and their interest passes to their heirs or the heirs of their heirs, resulting in multiple owners, some of whom may not even realize they now have a partial interest in inherited property.
Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation
If you have have additional questions, contact our office to learn about your legal options for protecting your rights in any matter where a partition action may be necessary. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.
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For a free phone case consultation or to schedule an office meeting, call 631-864-2600.
Partitions Overview
Partition actions are a request to have a court order property to be sold or physically divided among the joint owners.
Prosecution of Partitions
Joint tenants and tenants in common have a right to prosecute a partition action. The court has the final say whether or not to grant a partition, but subject to a few exceptions, a partition will almost always be granted.
Defense of Partitions
Defending a partition involves determining if the matter falls into one of the exceptions where the court will deny a sale or division and making sure that all set offs and credits are properly applied.
Partition Accountings
An accounting is necessary to ensure that all parties are given proper credits for jointly owned property before it is divided or the proceeds of a sale are split.
Lis Pendens in Partitions
A lis pendens is normally filed in most actions involving real estate to prevent a defendant from selling their interest to defeat the lawsuit.
Motion Practice in Partitions
Motions are an integral part of any partition action, and can range from a motion to dismiss, defending or seeking a summary judgment, to discovery motions.
Appeals from Partitions
Appeals from partition orders or judgments is a request to the appellate court to change the outcome of a trial or motion due an error committed by the trial court.
