Defending Partition Actions
Suffolk County Partition Defense Lawyer
Defending a New York Partition Action
Defending a partition action is not an easy task as the defenses to prevent a partition can be sparse. A skilled partition lawyer will be able to find these defenses and maximize their use to your advantage if you are a defendant in a partition action.
The first line of defense is to determine if the plaintiff falls into a category of those who cannot request a partition, and a review of the deed should always be the first step. If the deed shows that title is held by tenants by the entirety, then no partition can be brought under RPAPL 901. Normally a divorce severs this ownership into tenants in common, but here too, there is a narrow exception. If parties were divorced in a different state on a default, then under the divisible divorce doctrine the deed remains as tenants by the entirety.
Contracts and prior court orders may also be a critical defense a partition action. If the parties were not married but in a close relationship, the facts surrounding the purchase of the property may result in a constructive trust. If the property is an inherited property it may give the additional options not normally available.
These defenses should be reviewed and raised early on, but if they were not they should be raised as soon as possible. The goal is not to litigate unless absolutely necessary, but to negotiate a fair settlement from a position of strength.
At the Law Office of J. Douglas Barics, we bring a wealth of experience and a broad background of knowledge to mount the best possible defense you might have against a partition action.
Do you need representation in a Partition Action on Long Island or New York City?
Contact us online or at (631) 864-2600.
What You Need to Know About Defending a Partition Action
Can a property owner prevent someone from filing a partition action against them?
A property owner cannot prevent someone else from filing a partition action, as the courts are open to all as a fundamental right.
Can a partition action be dismissed early on?
A partition action can be dismissed after its filed. A motion to dismiss is required; this is a motion which is filed early in the case and is designed to weed out baseless cases. Motions to dismiss can be filed before the answer is filed. Some of the grounds for an early dismissal of a parturition action are as follows.
- Lack of capacity. Lack of capacity means the plaintiff does not have the mental ability to file a partition lawsuit.
- Another identical partition is pending. It is improper to bring a second partition if another identical one is already filed.
- Res judicata. Res judicata means the exact same issue between the exact same parties was already decided on the merits. Once decided, it cannot be brought again as both parties and the court is bound by the prior case.
- Failure to state a cause of action. A defective complaint can be dismissed without prejudice.
- Lack of personal jurisdiction over the defendant. If the defendant was not properly served, the case can be dismissed without prejudice.
- Lack of a necessary party. If there should be additional parties which are absolutely necessary to the case but are not either a plaintiff or defendant, the partition can be dismissed.
What are the main defenses to a partition?
Beyond a motion to dismiss, there are additional defenses that can be raised which if proven, can dismiss the partition with prejudice. All are fact specific to the parties. They include the following.
- The parties are married and own the property as tenants by the entirety. Tenants by the entirety is a way to own property jointly that can only exist between spouses, with one exception. If the the parties are divorced, the deed automatically becomes tenants in common and can be subject to a partition.
- The divisible divorce doctrine. The divisible divorce doctrine is a narrow defense that requires very specific facts. The parties must be married and own property in New York as tenants by the entirety. They must be divorced in a different state, with one spouse defaulting. Under the divisible divorce doctrine, a default divorce outside of New York will not change property rights of property located in New York, resulting in divorced spouses still holding property as tenants by the entirety.
- A divorce granted specific property rights to one of the spouses. If the parties are divorced and the divorce judgment gives one of the spouses exclusive occupancy of the property, a partition cannot normally be filed until the right to use the property has ended.
- A contract between the parties waiving the right to a partition. If the parties made a contract which waived the right to seek a partition, that contract can be enforced and the partition action can be dismissed.
- The property is classified as an heirs property. If the property ownership was obtained through an inheritance, additional rights are given to the owners, including an automatic right to buyout the party seeking to sell the property through the partition.
- Laches. Laches is a theoretical defense to a partition action as no known case exists where it is raised. It asserts that a party waited too long to assert a legal right. If it can be established there was great delay resulting in prejudice, laches could in theory act as a defense.
- Unclean hands. The doctrine of unclean hands is a special kind of defense which asserts the party seeking relief from the court has done something so egregious that they should not be granted relief. The act must relate to the case, and the action be of a level that "stains the honor of the court."
- Great prejudice. Great prejudice is the standard by which the court determines if the property can be physically divided between the parties. If it is shown, the property will be sold instead.
- Equity requires dismissal. The decision to partition the property always lies with the court and this term is the basis for the court's authority. While case law is fairly clear there is always a chance that something far out of the ordinary may result in an equity defense.
- Asserting a counter claim of a constructive trust. When applicable, a counter claim for a constructive trust can be one of the most powerful defenses to a partition, as it asserts the property should be transferred to the defendant. If the facts give rise to a claim of a constructive trust, it can be the death blow to a partition action.
What happens if none of these defenses to a partition work?
If none of the defenses to a partition apply or if they are denied, then the focus turns to the accounting where the goal is to make sure all credits are properly applied when the property is sold and the proceeds divided.
Contact Our Partition Attorney Today
At the Law Office of J. Douglas Barics, we have the skills and knowledge to handle any partition, no matter how challenging or complex. With over 20 years of experience in partition actions, we can bring to you the services of a large firm at a fraction of the cost. When you need a skilled partition lawyer located in Suffolk County, call The Law Office of J. Douglas Barics.
For a free phone case consultation or to schedule an office meeting, call 631-864-2600.