Defending Partition Actions

Suffolk County Partition Defense Lawyer

By J. Douglas Barics

Defending a partition action is not an easy task as the defenses to prevent a partition can be sparse. But a skilled partition lawyer will be able to maximize their use to your advantage if you are fighting against a partition.

The first line of defense is to determine if there is a legal reason why the plaintiff might fall into a category of those who cannot request a partition. A review of the deed should always be the first step.

If the deed shows that title is held by tenants by the entirety, a form of ownership that exists only between spouses, then no partition can be brought under RPAPL 901.

If the deed is tenants by the entirety and the parties are divorced, normally that will convert the ownership to tenants in common with one critical exception.  If the parties were divorced in a different state on a default, then under the divisible divorce doctrine, the deed remains as tenants by the entirety. This is a prime example of the importance of understanding the overlap between matrimonial and property law.

If there is a contract between the parties that too must be explored. While an oral contract might not be enforceable, it might give rise to the defense of equitable estoppel or detrimental reliance.

Another defense that must be explored early is whether the circumstances that gave rise to the acquisition of the joint property would fall into a constructive trust. If so, that too could provide an important defense to the partition.

Other defenses may exist as well which are fact specific to each case.

While no defense can be 100%, having a viable, credible defense beyond words means you are in a far better position to negotiate a 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.