Defending a Partition Lawsuit in NYC: Your Rights as a Co-Owner Defendant

The First Deadline: Answering the Complaint

Under CPLR 320(a) and CPLR 3012, your time to appear and answer depends on how you were served. If the summons and complaint were handed to you personally inside New York State, you have 20 days. If service was made any other way, for example by leaving the papers with a person of suitable age at your home and mailing a copy, by affixing them to your door and mailing, or by service outside the state, you have 30 days from the date service is complete. Under CPLR 308(2) and 308(4), service is not complete until ten days after the affidavit of service is filed, so the clock may start later than the day the papers arrived.

If you do not answer, the plaintiff may move for a default judgment under CPLR 3215. A defaulting co-owner loses the chance to plead defenses and counterclaims, including claims for credits. A default can sometimes be undone. CPLR 3012(d) lets the court extend the time to plead on a showing of a reasonable excuse, and CPLR 5015(a)(1) allows a motion to vacate a default judgment within one year on a showing of a reasonable excuse and a potentially meritorious defense. Courts in the Appellate Division have been inconsistent about what counts as a reasonable excuse, and "I did not think it was serious" rarely qualifies. Answer on time.

Does the Plaintiff Have the Right to Partition at All?

RPAPL 901(1) gives the right to bring a partition action to "a person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years." Three things follow from that language.

• The plaintiff must actually hold title. Check the recorded deed in ACRIS and the full chain of title. A deed that was never delivered, a forged or defective deed, a transfer that violated a trust or a will, or a conveyance set aside in a Surrogate's Court proceeding can leave the plaintiff without an interest to partition.
• The plaintiff must be a joint tenant or tenant in common. Spouses who hold title as tenants by the entirety cannot partition against each other while the marriage lasts. The Court of Appeals confirmed in Kahn v. Kahn, 43 N.Y.2d 203 (1977), that a court cannot order the sale of entirety property absent a divorce or separation that converts the tenancy. If the deed to you and your spouse says nothing about the form of ownership, New York presumes a tenancy by the entirety under EPTL 6-2.2(b).
• The plaintiff must be "holding and in possession." For a co-tenant this is usually satisfied by constructive possession, because possession by one co-tenant is treated as possession by all. It becomes a live issue when the plaintiff holds only a future interest or when the plaintiff's own long absence is coupled with an adverse possession claim by the occupant.

If you have lived in the property alone for decades and the plaintiff has had nothing to do with it, consider adverse possession. The hurdle is high. RPAPL 541 presumes that a co-tenant's occupancy is on behalf of all co-tenants for the first ten years, and only after that does the ordinary ten-year adverse possession period begin to run. The Court of Appeals in Myers v. Bartholomew, 91 N.Y.2d 630 (1998), read the statute to require twenty years of exclusive possession before a co-tenant can claim title against another. See our page on adverse possession in New York.

Equitable Defenses: What They Can and Cannot Do

The Appellate Division has said repeatedly that partition is a matter of right for a co-owner who no longer wishes to own jointly, but that "the right is not absolute" and the remedy "is always subject to the equities between the parties." Graffeo v. Paciello, 46 A.D.3d 613 (2d Dept 2007); Manganiello v. Lipman, 74 A.D.3d 667 (1st Dept 2010). You should read those words carefully. In practice, equitable defenses seldom result in a court refusing partition outright. They more often change the terms: who gets credit for what, whether the sale is by auction or on the open market, and how long the defendant has to buy the plaintiff out.

• Unclean hands: A plaintiff who collected rents from the building and kept them, locked you out, or stripped the property of fixtures has come to equity with unclean hands. The usual result is a charge against the plaintiff's share, not dismissal.
• Laches: Delay alone is not a defense. You must show that the plaintiff waited unreasonably and that you changed position in reliance, for example by paying off the mortgage or rebuilding after a fire, in a way that would make a forced sale unfair.
• Estoppel: If the plaintiff told you the property would stay in the family and you gave up other housing, paid for a renovation, or declined an offer to sell, the court can weigh that in setting terms.

Agreements Not to Partition

Co-owners can give up the right to partition by contract. The Court of Appeals in Chew v. Sheldon, 214 N.Y. 344 (1915), held that an agreement not to partition is enforceable if it is limited to a reasonable period. Look for such a term in a co-ownership or tenancy-in-common agreement, in the operating agreement of an LLC that holds title, in a shareholders' agreement if the property is held through a corporation, or in the will or trust that created the co-ownership. A waiver can also be implied from the purpose of the arrangement, for instance where siblings agreed in writing that a parent could live in the house for life. A clear written waiver is the strongest complete defense available to a partition defendant.

Ouster and Use and Occupancy

A recurring fight in New York City partition cases is whether the co-owner who lived in the property owes rent to the co-owner who did not. The Court of Appeals set the rule in Jemzura v. Jemzura, 36 N.Y.2d 496 (1975): a tenant in common may occupy the whole property, and in the absence of an agreement to pay rent or an ouster, the co-tenant in possession is not liable to the others for use and occupancy. Ouster means an affirmative act that excludes the other co-owner, such as changing the locks, refusing a demand for access or possession, or claiming sole title.

This cuts both ways for a defendant. If you have lived in the house and the plaintiff never asked to move in or was never refused, you generally owe nothing for your occupancy. If the plaintiff lived there and shut you out, you may be entitled to a credit equal to your share of the fair rental value from the date of ouster. The analysis is the same one we describe on our page about a brother living rent free in an inherited house, viewed from the defendant's chair. Where the property is held by an estate rather than by the heirs directly, see beneficiary living in an inherited house.

Credits, Offsets and the Accounting

Even when partition cannot be defeated, the division of proceeds is rarely a straight split by percentage interest. The Second Department has held that a court may not enter a final judgment in a partition action without first conducting an accounting of the parties' income and expenses for the property. Donlon v. Diamico, 33 A.D.3d 841 (2d Dept 2006). In Brady v. Varrone, 65 A.D.3d 600 (2d Dept 2009), the court confirmed that a co-tenant who paid more than his share of mortgage payments, taxes, insurance, repairs and maintenance is entitled to a credit against the other co-tenant's share of the proceeds.

Items that commonly produce credits in New York City cases:

• Mortgage principal and interest paid by one co-owner.
• Real estate taxes and water and sewer charges.
• Homeowner's or building insurance.
• Necessary repairs, such as a roof, boiler or facade work required by a Department of Buildings violation.
• Capital improvements, credited to the extent they increased the property's value, not necessarily at cost.
• Rents collected by one co-owner and not shared.
• Use and occupancy after an ouster, as described above.

Preserve the paper. Cancelled checks, bank statements, tax bills, contractor invoices and the mortgage servicer's payment history are what the referee and the court will accept. Recollection without documents is rarely enough.

Inherited Property: RPAPL 993

If the property came to you and your co-owners from a parent or other relative, the Uniform Partition of Heirs Property Act, codified at RPAPL 993 and in effect since December 2019, may apply. It changes the defendant's position considerably. The statute applies to "heirs property," which it defines as real property held as tenants in common where there is no written agreement governing partition, at least one co-tenant acquired title from a relative, and at least 20 percent of the interests are held by relatives or by co-tenants who acquired from a relative.

When RPAPL 993 applies, the court must follow a different sequence:

1. Court-ordered appraisal. The court determines fair market value, ordinarily by appointing a disinterested licensed appraiser, unless the parties agree on a value.
2. Buyout right. After the value is set, co-tenants who did not request a sale may elect to buy the interest of the co-tenant who did, at the appraised value, within the statutory election period (45 days after the court's notice of the valuation) and must then pay within the time the statute sets.
3. Preference for partition in kind. If no buyout occurs, the court must order partition in kind unless it finds, after weighing the factors listed in the statute, including a co-tenant's long-term residence and sentimental attachment, that in-kind division would result in great prejudice.
4. Open-market sale, not auction. If a sale is ordered, it is to be conducted on the open market through a licensed real estate broker at a court-approved listing price, rather than by a referee's auction, unless the court finds an auction would be more economically advantageous.

A defendant who qualifies under RPAPL 993 should plead it in the answer and raise it at the earliest conference. Our page on the Uniform Partition of Heirs Property Act in New York walks through the statute in detail, and our page on buying out co-owners of an inherited residence covers the financing side.

Co-ops, Condos, Multi-Family Buildings and Regulated Tenants

Cooperative apartments

A co-op is not real property. The owner holds shares in the apartment corporation and a proprietary lease, both of which are personal property, so RPAPL Article 9 does not apply by its terms. The First Department held in Chiang v. Chang, 137 A.D.2d 371 (1st Dept 1988), that the Supreme Court may nevertheless order partition of a co-op apartment under its general equitable jurisdiction, applying the same principles that govern partition of real property. Two practical differences follow. The sale must comply with the proprietary lease and the board's transfer approval process, so a court-ordered sale is usually structured as a listing with board review rather than an auction to a stranger. And the plaintiff's standing is tested by the stock certificate and lease, not a deed.

Condominium units

A condominium unit is real property under the Condominium Act, Real Property Law Article 9-B, and is subject to RPAPL Article 9. It cannot be divided in kind. The condominium's right of first refusal, if the bylaws contain one, applies to the sale and must be addressed in the terms of sale.

Two- and three-family houses and small buildings

Partition in kind is possible in theory where a building has separate units and a certificate of occupancy that supports separate ownership, but New York City zoning and tax-lot rules make a physical split of a single building impractical in nearly every case. Adjacent lots held under one deed are a different matter and can sometimes be divided.

Rent-stabilized and rent-controlled tenants

Tenancies protected by the Rent Stabilization Law or rent control survive a partition sale. The buyer takes subject to them. A building with regulated tenants paying far below market will appraise and sell for less than a vacant one, which affects the appraisal under RPAPL 993, the fair rental value used in any ouster calculation, and the value of a buyout.

How the Case Moves Once You Have Answered

1. Discovery. Both sides exchange deeds, mortgage statements, tax records, leases, bank records and appraisals. Depositions follow if the facts about contributions or ouster are disputed.
2. Interlocutory judgment. If the plaintiff establishes a right to partition, the court enters an interlocutory judgment under RPAPL 911 (partition in kind) or RPAPL 915 (sale). The judgment determines each party's share and, if it finds that division cannot be made "without great prejudice to the owners," directs a sale. An interlocutory judgment is appealable, and the question of great prejudice is often where the fight over auction versus private sale is decided.
3. The referee. The court appoints a referee to take the accounting, determine liens and credits, and conduct the sale. The referee's fee is set by the court under CPLR 8003 and is paid from the proceeds.
4. The sale. Outside RPAPL 993, a sale under a judgment is by public auction with notice published as RPAPL 231 requires. The referee sets terms of sale, typically a 10 percent deposit at the auction and closing within 30 days. Any party, including the plaintiff and the defendant, may bid.
5. Report of sale and final judgment. The referee reports the sale and the accounting. After confirmation, the court enters final judgment distributing the net proceeds after liens, costs and credits.
6. Possession. You keep the right to occupy until the referee's deed is delivered. After that, a purchaser who cannot obtain possession may apply for a writ of assistance under RPAPL 221.

For the time each stage usually takes in the city's Supreme Courts, see how long a partition action takes. For the cost side, see what a partition action costs.

Three New York City Fact Patterns

The following are composite illustrations of how the rules above operate. They are not descriptions of any client's case and are not predictions of results.

Brooklyn two-family inherited by three siblings

A mother dies without a will, and her Bedford-Stuyvesant two-family passes to three children through an administration proceeding. One sibling has lived in the first-floor unit for years and collects rent from the upstairs tenant. Another sibling sues for partition. Because the property came from a relative and there is no written agreement, RPAPL 993 applies. The court orders an appraisal. The resident sibling elects to buy the plaintiff's one-third at the appraised value and finances it with a mortgage on the house. The upstairs rents the resident sibling kept are charged against her share in the accounting, reducing what she pays. No auction occurs.

Harlem brownstone with an ouster claim

Two cousins hold a brownstone as tenants in common. One cousin moved in, changed the locks, and ignored the other's written demand to share the house. The excluded cousin sues for partition and seeks use and occupancy. Under Jemzura, the resident cousin owes nothing for the period before the demand, but the refusal after a written demand for access is an ouster. The resident cousin receives a credit for the taxes and insurance she paid, while the excluded cousin receives a credit for half the fair rental value from the ouster date. The two credits are netted in the referee's accounting before the proceeds are divided.

Queens house with a mortgage in one owner's name

An unmarried couple buys a house in Jamaica. Title is in both names, but the mortgage is in his name only, and he has made every payment since the breakup. She sues for partition. The lender is joined because its lien must be addressed in the judgment. Under Brady v. Varrone, he is entitled to a credit for her half of the principal and interest he paid, and the mortgage balance is paid from the proceeds before division. Because the property is not heirs property, RPAPL 993 does not apply, but he can still argue for a private sale with a marketing period rather than an auction, or negotiate to buy her out at a price that reflects his credits.

Questions Co-Owner Defendants Ask

Can I stop a partition sale?

Outright, only in limited circumstances: the plaintiff lacks a valid interest, you and your spouse hold as tenants by the entirety, a written agreement bars partition, or you can establish adverse possession under RPAPL 541 and Myers v. Bartholomew. Otherwise the realistic goals are to buy the plaintiff out, to invoke RPAPL 993 if the property is heirs property, to obtain a private sale instead of an auction, and to maximize your credits.

What happens if I ignore the summons?

The plaintiff can obtain a default judgment under CPLR 3215, and the case proceeds to an interlocutory judgment and sale without your defenses or credits. You can move to vacate under CPLR 5015(a)(1) within one year if you have a reasonable excuse and a meritorious defense, but the motion is discretionary and costs time and money that an answer would not have.

Can I be forced to sell a house I inherited with my siblings?

Yes, if a sibling co-owner insists and no agreement bars it. But under RPAPL 993 you have the right to buy the suing sibling's share at a court-determined appraised value before any sale, and if a sale does happen it must be an open-market listing rather than an auction.

Can I keep living in the house during the case?

Yes. Your ownership and right of possession continue until the referee delivers a deed to the purchaser. Under Jemzura you do not owe rent for living there unless you have ousted the plaintiff or agreed to pay. If you refuse the plaintiff's demand for access, however, you may create an ouster and a use-and-occupancy claim against yourself.

Who pays the referee and the lawyers?

The referee's fee under CPLR 8003 and the costs of the sale are paid from the proceeds before distribution, so every owner bears them in proportion to their share. Under RPAPL 981 the court may award costs and allowances out of the proceeds, but in a contested case each side ordinarily pays its own attorney. Courts have declined to charge a plaintiff's counsel fees against all owners where the litigation did not benefit the defendants.

Can the plaintiff bid at the auction?

Yes. Any party may bid at a judicial sale under RPAPL 231. So can you. A co-owner who bids and wins pays only the portion of the price attributable to the other owners' shares, after credits, since the balance is her own equity.

What if the mortgage is only in the plaintiff's name, or only in mine?

The lender's lien attaches to the borrower's interest and must be dealt with in the judgment, which is why lenders are joined as defendants. The mortgage is paid from the sale proceeds. Whether the non-borrowing owner shares that cost depends on the accounting: if the loan proceeds bought or improved the property for both owners, the court generally treats it as a joint obligation and credits the borrower for payments made.

Can I sell my share instead of going through the case?

A tenant in common can sell her undivided interest without the other owner's consent. Buyers of fractional interests pay steep discounts, and the sale does not end the partition action, which continues against the new owner. Selling your interest to the plaintiff, or buying the plaintiff's interest, is usually the better route. See offering a buyout of a jointly owned residence.

About the Author

This page was written by Albert Goodwin, Esq., a New York attorney whose practice is focused on estate, trust and real property disputes in the Surrogate's Courts and Supreme Courts of New York City. More about his background is at about Albert Goodwin. The statutes and cases cited above are current as of the date of writing, and you should confirm them against the official text and the most recent Appellate Division decisions before relying on them.

If You Have Been Served

Bring the summons, the complaint, the affidavit of service, your deed, and whatever records you have of mortgage, tax and repair payments. We will calculate your answer deadline, assess whether RPAPL 993 or a tenancy by the entirety applies, identify the credits you can claim, and tell you whether a buyout, a private sale or litigation serves you best. For property in Manhattan, Brooklyn, Queens, the Bronx or Staten Island, call 212-233-1233 or email email@nyestateslawyer.com.