When co-owners of real property can no longer agree on what to do with it, whether to sell it, keep it, buy each other out, or continue sharing it, New York law provides a mechanism to force a resolution: the partition action. Governed primarily by Article 9 of the Real Property Actions and Proceedings Law (RPAPL), a partition action allows any co-tenant, whether a joint tenant or a tenant in common, to ask a court to either physically divide the property or, far more commonly for improved residential and commercial property, order the property sold and the proceeds distributed.

 

## When Partition Becomes Necessary

 

Partition actions arise in a wide range of circumstances: siblings who inherited a house and disagree about selling it, former business partners who co-own investment property, or unmarried co-habitants who purchased property together and later separated. Because New York does not require co-owners to have a formal agreement governing how the property will be managed or eventually sold, disputes over use, expenses, and exit strategy are common, and partition is often the only way to force a resolution when negotiation fails.

 

## Partition in Kind Versus Partition by Sale

 

The RPAPL technically favors partition in kind, meaning a physical division of the property among the owners. In practice, this remedy is rarely workable for a single residential lot or commercial building, since dividing the physical structure would destroy its value or render portions unusable. Courts routinely order partition by sale instead, particularly where the evidence shows that a physical division would substantially prejudice the owners, either because of the property's nature or because a sale on the open market will produce a fairer overall result than a forced physical split.

 

## The Interlocutory Judgment and the Referee

 

A partition case typically proceeds in two phases. First, the court issues an interlocutory judgment determining the parties' respective interests in the property and directing a sale (or, less commonly, a physical division). Second, the court appoints a referee to conduct the accounting and, where a sale is ordered, to oversee the marketing and sale of the property. The referee's report on the accounting, once confirmed by the court, forms the basis for the final judgment distributing net proceeds.

 

## Credits and Accounting: Where Litigation Gets Complicated

 

A judgment of partition and sale rarely just divides proceeds equally by ownership percentage. Before the court distributes sale proceeds, it typically conducts an accounting to adjust for contributions and expenditures made by each party during the period of co-ownership. Common credit issues include:

 

- Mortgage payments, real estate taxes, and insurance paid disproportionately by one owner

- Capital improvements that increased the property's value, as opposed to ordinary repairs

- Rental income collected by one co-owner to the exclusion of the other

- Ouster, where one co-owner has been excluded from the property entirely, which can affect both parties' rights to credits for carrying costs and use and occupancy

 

These accounting disputes are frequently the most contested part of a partition case and can shift the ultimate distribution significantly away from a straight percentage split based on record title.

 

## Strategic Considerations for Co-Owners

 

For a co-owner considering a partition action, the decision is rarely just about whether the law entitles them to force a sale, since in most cases it does. The more important questions are what credits and offsets will be sought or defended against, whether a buyout negotiated before litigation might preserve more value than a forced sale process, and how quickly the matter needs to move given carrying costs that continue to accrue during litigation.

 

## The Bottom Line

 

Partition actions are equitable in nature, and courts have considerable discretion in fashioning relief, particularly around credits and accounting. Co-owners considering or facing a partition action should build their factual record on contributions and expenses early, since that record, more than the bare fact of co-ownership, often determines how proceeds are ultimately divided.

 

If you need access to a neighboring property to complete a construction project, or a neighbor's construction is affecting your property and you have been asked to grant access, contact David A. Gallo & Associates LLP to discuss your options.

 

**David A. Gallo & Associates LLP**

47 Hillside Avenue, Second Floor, Manhasset, New York 11030

Phone: 718-269-7607