Inherited and Co-Owned Property Litigation in New York

Who Owns the House After a Death

You cannot pick the right proceeding until you know who holds title and in what form. The deed and the estate papers answer that question, and the answer is often not what the family assumes.

• Joint tenancy with right of survivorship: if the deed names two people "as joint tenants with right of survivorship," the survivor owns the whole property the moment the other dies. The decedent's will and the decedent's children have no claim to it. Under EPTL 6-2.2, a deed to two or more people creates a joint tenancy only if it says so expressly.
• Tenancy by the entirety: a deed to a married couple creates a tenancy by the entirety unless it says otherwise (EPTL 6-2.2(b)). The surviving spouse takes the whole property. Neither spouse can force a partition while the marriage lasts.
• Tenancy in common: this is the default for any deed to two or more unmarried people, and it is what heirs and devisees hold after a death. Each co-owner holds an undivided fractional share, can sell or mortgage that share, and can bring a partition action.
• Property still in the decedent's sole name: if the decedent died without a will, title vests in the distributees under EPTL 4-1.1 as of the date of death, subject to the administrator's powers. If there is a will, the devisees take title once the will is admitted to probate, and that title relates back to the date of death. In both situations the executor or administrator has statutory power under EPTL 11-1.1(b)(5) to take possession of, manage, lease and sell the real property, and a will can expand or restrict that power.

That last point explains why some families cannot start a partition right away. Until letters issue and the fiduciary has dealt with debts, taxes and administration expenses, the heirs' shares are not settled, and a Supreme Court judge may stay a partition until the estate is far enough along. If no one has applied for letters, see our pages on letters of administration and estate administration.

Which Proceeding Fits Your Situation

Five different proceedings come up in inherited-property disputes. They are heard in different courts, move at different speeds and require different facts. Picking the wrong one wastes months.

Partition

Partition is the remedy when co-owners of a tenancy in common or joint tenancy cannot agree. Any co-owner may file. The court first decides each party's share and any credits, then either divides the land (partition in kind under RPAPL 901) or orders a sale (RPAPL 915). A single-family house in New York City cannot be divided, so these cases end in a sale or a buyout. Partition is the right tool when the person in the house is a co-owner and you are willing to accept a sale if no buyout is reached.

Buyout

A buyout is a private sale of one co-owner's share to another. It avoids a referee, a broker's commission on a forced sale and a year of litigation. It only works if the parties can agree on value and on how to handle credits for past carrying costs. Since December 2019, co-owners of an inherited house also have a statutory buyout right inside a partition action under RPAPL 993, described below. We maintain separate pages for the co-owner offering a buyout and the co-owner responding to a buyout offer.

Licensee holdover or ejectment

If the occupant is not a co-owner, partition does not apply. An adult child, sibling or companion who lived with the decedent, and who was never on the deed and takes nothing under the will, is generally treated as a licensee whose license ended at the owner's death. The owner (or the fiduciary, on behalf of the estate) can bring a summary holdover proceeding under RPAPL 713(7) after serving a ten-day notice to quit under RPAPL 735. Housing Court in New York City is faster than Supreme Court, but some judges are reluctant to treat long-term family members as licensees. The alternative is an ejectment action under RPAPL Article 6 in Supreme Court, which is slower but avoids the licensee question. The right choice depends on the occupant's relationship to the decedent, how long they have lived there and whether they claim any ownership. See a beneficiary living in an inherited house and a beneficiary of an estate or trust living in the estate's house.

Surrogate's Court proceedings

The Surrogate's Court has jurisdiction over any matter relating to the affairs of a decedent (SCPA 201, 202). An executor or administrator can bring a discovery and turnover proceeding under SCPA 2103 to compel someone to account for and turn over estate property, including rents collected from the decedent's house. The Court of Appeals confirmed in Matter of Piccione that the Surrogate's Court may also hear a proceeding to recover possession of real property belonging to the estate. When the fight over the house is really a fight about estate administration, keeping everything before one Surrogate avoids inconsistent rulings. Our page on discovery and turnover proceedings explains the mechanics.

Quiet title

Quiet title under RPAPL Article 15 is a Supreme Court action for a judgment declaring who owns the property and extinguishing competing claims. It is the remedy when the problem is the chain of title itself rather than a disagreement among known owners. Estate-related quiet title problems are covered in their own section below.

Partition of an Inherited House: The Heirs Property Rules

Since December 2019, New York's Uniform Partition of Heirs Property Act, codified at RPAPL 993, changes how partition works for most inherited homes. Property is "heirs property" when it is held as a tenancy in common, there is no written agreement among all co-owners governing partition, at least one co-owner acquired title from a relative, and relatives hold or acquired at least twenty percent of the interests (or make up at least twenty percent of the co-owners). Nearly every house passed from a parent to children qualifies.

When the court finds the property is heirs property, the ordinary partition sequence is replaced with these steps:

1. Appraisal: the court orders an appraisal by a disinterested licensed appraiser unless all parties agree on a value. The parties can object to the appraisal, and the court then fixes the fair market value.
2. Buyout election: once value is fixed, the co-owners who did not request a sale have forty-five days to elect to buy the interest of the co-owner who requested the sale, at the court-determined value multiplied by that owner's fractional share.
3. Payment: an electing co-owner then has sixty days to pay the purchase price into court. If more than one co-owner elects, they buy in proportion to their shares.
4. Partition in kind or open-market sale: if no buyout is completed, the court considers whether the property can be divided. For a house it cannot, so the court orders an open-market sale through a licensed real estate broker at a listing price no lower than the appraised value, rather than a courthouse auction. Only if that fails may the court order a sealed-bid or auction sale.

The practical result is that a sibling who wants to keep the family home gets a statutory right of first refusal at appraised value, and a sibling who wants out gets a sale at market rather than at a distressed auction price. The statute also sets timing, so the buyout cannot be delayed indefinitely. Before 2019, a co-owner who wanted to keep the house had to negotiate for that right or outbid strangers at a referee's auction.

RPAPL 993 does not apply to every co-owned property. Property bought by unrelated partners, or property held under an agreement that addresses partition, goes through the older RPAPL Article 9 process. Our partition action page covers that path and the referee's sale.

Timeline and Cost of a Partition Action in New York City

The ranges below reflect how contested partition cases generally move through the Supreme Court in Kings, Queens, New York, Bronx and Richmond Counties. They are estimates, not a prediction for any particular case. Calendar congestion, motion backlogs and the number of parties all change the schedule.

Stages

1. Title search and pleadings (weeks 1 to 8): a certified title search identifies every owner, mortgagee and lienholder who must be joined. The summons and complaint are filed, a notice of pendency is recorded against the property under CPLR 6501, and defendants have twenty days to answer if served personally in New York or thirty days otherwise (CPLR 320).
2. Heirs property determination and appraisal (months 2 to 6): in an RPAPL 993 case the court decides whether the property is heirs property and orders the appraisal. Appraisal, objections and the court's value determination commonly take two to four months.
3. Buyout window (months 5 to 9): the forty-five-day election and sixty-day payment periods run from the value determination. Many cases settle during this window because the value is now fixed.
4. Discovery and the accounting (months 4 to 12): if the parties dispute credits for carrying costs, repairs or occupancy, each side exchanges bank records, tax bills and receipts, and depositions may be taken. A preliminary conference order sets the schedule.
5. Interlocutory judgment and referee (months 9 to 15): the court grants an interlocutory judgment fixing the shares and directing a sale, and appoints a referee to supervise it. Summary judgment motions in New York City Supreme Court often wait several months for a decision.
6. Sale, closing and distribution (months 12 to 24): the broker lists the property, a contract is signed, the closing occurs, and the referee files a report of sale. The court confirms the report and directs distribution of net proceeds after liens, costs and credits.

A partition that settles after the appraisal typically ends within four to eight months. A partition contested through sale typically takes twelve to twenty-four months in the city. Appeals add a year or more.

Costs

• Court fees: the Supreme Court index number is $210, a request for judicial intervention is $95, a note of issue is $30 and each motion is $45 (CPLR 8018, 8020). A notice of pendency has its own county clerk recording fee.
• Title search: several hundred dollars for a residential parcel, more if the chain of title is long or includes unprobated estates.
• Appraisal: a court-ordered residential appraisal in New York City generally costs several hundred to a few thousand dollars, split among the parties as the court directs.
• Referee's fees and broker's commission: the referee is paid from the sale proceeds. A broker's commission on an open-market sale under RPAPL 993 is a percentage of the sale price, as in any sale.
• Attorney's fees: these depend on how far the case goes. We quote hourly or flat-fee arrangements at the first meeting, after reviewing the deed, the estate file and the positions of the other co-owners. Under RPAPL 981 the court may direct that costs and reasonable counsel fees for work that benefited all the owners be paid from the sale proceeds before distribution, which shifts part of the cost to the co-owners who forced the litigation.

How Credits and Use-and-Occupancy Charges Are Calculated

The fractional shares on the deed are the starting point for dividing sale proceeds, not the end. In the accounting phase the court adjusts the shares for what each co-owner paid and what each co-owner took. The rules below are the ones that decide most inherited-house cases.

• Carrying costs are credited: a co-owner who paid more than their share of mortgage principal and interest, real estate taxes, insurance, water and sewer charges, or necessary repairs is entitled to contribution from the others, usually taken from their share of the proceeds. Keep every receipt and bank statement. Claims without documentation are routinely cut.
• Improvements are credited only for added value: a co-owner who renovated the kitchen does not recover the invoice. They recover the amount by which the improvement increased the sale price, if they can prove it, and only for improvements made in good faith.
• No rent is owed just for living there: under New York law a co-owner in sole possession is not liable to the other co-owners for use and occupancy unless there was an ouster, meaning the occupant excluded the others or the parties agreed rent would be paid. A sibling who stayed in the house after the parent's death, while the others simply chose to live elsewhere, generally owes nothing for the occupancy itself.
• But credits are offset by occupancy: when the occupying co-owner asks the court for credit for the taxes and mortgage they paid, the court may offset that credit by the reasonable rental value of their exclusive use. In practice, the sibling who lived there for free rarely recovers the full amount they paid in carrying costs.
• Rents collected belong to all: if a co-owner rented out the house or a unit and kept the rent, the others are entitled to their share of the net rents in the accounting.
• Long occupancy does not transfer title: RPAPL 541 presumes that a co-owner's possession is on behalf of all co-owners for ten years, and only after that could the occupant begin the separate ten-year adverse possession period against the others, and then only with the exclusion required by RPAPL Article 5. A sibling who has lived in the house for fifteen years has not, by that fact alone, acquired the siblings' shares.

Rental value is usually proven through a broker's or appraiser's rental opinion. Carrying costs are proven through bank records and the tax and insurance bills. The accounting is where most of the discovery effort goes, and it is also where the parties most often reach a number they can settle on.

Removing a Relative Who Is Not an Owner

A different problem arises when the person in the house has no title at all: a sibling who moved in to care for the parent, a parent's companion, a grandchild. If the will leaves the house to someone else, or the occupant is not a distributee, the occupant is holding the property without a legal right once the owner has died.

The steps in a licensee holdover proceeding in New York City are:

1. Standing: the petitioner must be the person entitled to possession. That is the executor or administrator holding letters, or the devisee or distributee once title has vested. Without letters or a probated will, the petition is vulnerable to dismissal.
2. Ten-day notice to quit: RPAPL 713 requires a written notice to quit served at least ten days before the petition, in the manner set by RPAPL 735 (personal delivery, substituted service with mailing, or conspicuous-place service with mailing after reasonable attempts).
3. Petition in Housing Court: the petition is filed in the Civil Court Housing Part for the borough where the property sits, and a return date is set. Housing Court cases in the city typically take several months to resolve, longer if the occupant raises a defense or claims a succession right or ownership.
4. Judgment and warrant: a judgment of possession is followed by a warrant executed by a marshal, with the statutory notice period before the marshal acts.

If the occupant claims they were promised the house, contributed money toward it, or hold a deed, the ownership question has to be resolved first, and a Supreme Court ejectment action joined with a quiet title claim is the better vehicle. If the occupant is a beneficiary of the estate who is entitled to a share of the house but not to live there rent-free, the executor can also seek use and occupancy for the estate, and the Surrogate's Court may charge the occupancy against that beneficiary's distribution. Our page on access to a house after death addresses the related problem of an occupant who locks the executor out.

Quiet Title Problems That Come Out of Estates

Clouds on title in inherited property follow a few recurring patterns. Each calls for a Supreme Court action under RPAPL Article 15, and sometimes a parallel proceeding in Surrogate's Court.

• The deathbed deed: a parent signs a deed to one child weeks before dying. The other children contend the parent lacked capacity or was unduly influenced. The challengers sue to set the deed aside and declare the property part of the estate. The same facts often support a will contest, and the two proceedings should be coordinated.
• The deed recorded after death: a deed signed years earlier surfaces and is recorded after the grantor dies. Questions of delivery, acceptance and forgery decide whether it conveyed anything.
• Unknown or missing heirs: a house passed by intestacy through two generations without any administration, and the current occupants cannot sell because the title company requires every distributee to sign. A quiet title action, with service by publication on unknown heirs under CPLR 315 and RPAPL 1511, produces a recordable judgment. An affidavit of heirship sometimes satisfies the title company without litigation.
• The surviving joint tenant versus the estate: the decedent's children believe the house is theirs under the will, but the deed named a second person as joint tenant with right of survivorship. The survivor owns it, unless the deed itself can be challenged.
• Stale mortgages and liens: a mortgage paid off decades ago was never discharged of record, or a judgment against a long-dead owner still appears in the search. RPAPL 1501(4) allows an action to cancel a mortgage once the limitations period to foreclose it has expired.

RPAPL 1515 requires the complaint to describe the property, state the plaintiff's estate or interest, and identify the adverse claim. RPAPL 1511 governs who must be named. A judgment binds only those properly served, so the title search and service plan matter as much as the merits.

Illustrative Scenarios

The scenarios below are hypothetical. They are written to show how the rules above fit together, not to describe actual clients or results.

Three siblings, one in the house

A mother dies intestate in Brooklyn leaving three children. The youngest has lived in the house for eight years and paid the taxes and insurance. The others want to sell. Title vested in all three as tenants in common at the mother's death, subject to administration. One sibling obtains letters of administration. A partition is filed; the property is heirs property under RPAPL 993. After the appraisal, the youngest has forty-five days to elect to buy the other two-thirds at appraised value. In the accounting, the youngest claims credit for eight years of taxes and insurance; the others respond that the credit should be offset by the rental value of the youngest's exclusive occupancy. Whether the youngest can finance the buyout, and what the net credit comes to, decides whether the case ends in a buyout or an open-market sale. See borrowing against inherited property for how a buyout is often financed.

The companion who will not leave

A father dies in Queens leaving a will that gives the house to his two children. His companion of six years, who is not on the deed and is not named in the will, remains in the house. The executor serves a ten-day notice to quit and files a licensee holdover in Queens Housing Court. If the companion claims the father promised her the house, the executor must be prepared to show the will controls and that no deed or writing supports her claim; if she produces a document, the case may belong in Supreme Court instead.

The deed signed in hospice

A widow in Manhattan with four children signs a deed to one daughter three weeks before dying. The daughter records it after the death. The other children bring a Supreme Court action to set the deed aside for lack of capacity and undue influence, and ask the Surrogate's Court to treat the apartment as an estate asset. The medical records, the circumstances of the signing, and who arranged for the notary become the central proof. If the deed is set aside, the apartment passes under the will or by intestacy and the siblings proceed as co-owners.

Related Property Matters

The disputes above are the center of this practice. We also handle these related matters, each on its own page:

• A house held in two names, including disputes between unmarried co-owners and former partners.
• Adverse possession claims and defenses under RPAPL Article 5, including the 2008 amendments and boundary encroachments.
• Representation of landlords in nonpayment and holdover proceedings under RPAPL Article 7, including estates that own rental property.
• Neighbor construction disputes and access agreements under RPAPL 881.
• A beneficiary buying property from a trust and other trustee real property transactions.

Frequently Asked Questions

Can I start a partition before the estate is administered?

Usually you should not. If the decedent died intestate, title vested in the distributees at death, but the administrator's power to sell and the estate's debts come first, and a Supreme Court judge may stay the partition until letters have issued and the estate's obligations are known. If there is a will, the devisees do not hold marketable title until probate. In most cases the practical order is: obtain letters, resolve debts and the fiduciary's position on the house, then file the partition or negotiate the buyout.

My sister has lived in our parents' house for twenty years. Is it hers now?

Not by that fact alone. RPAPL 541 presumes that one co-owner's possession is on behalf of all co-owners for the first ten years. Only after that period could an adverse possession period begin, and it would require the strict elements of RPAPL Article 5, including the exclusion of the other owners under a claim of right, for a further ten years. If she never ousted you and you never gave up your claim, you remain a co-owner. The question of what she owes or is owed for those twenty years is handled in the partition accounting.

Does the executor need court permission to sell the house?

Generally no. EPTL 11-1.1(b)(5) gives an executor or administrator power to sell the decedent's real property without a court order unless the will restricts it. Devisees who were specifically left the house can object if the sale is not needed to pay debts or expenses, and SCPA Article 19 provides the procedure for a court-authorized sale when the fiduciary's authority is in doubt. A beneficiary who believes the executor is selling for too little, or to a friend, can raise the objection in Surrogate's Court.

Can the court make my brother sell his share to me instead of to a stranger?

If the house is heirs property under RPAPL 993 and your brother is the one who requested the sale, you have a statutory right to elect, within forty-five days after the court fixes the value, to buy his share at that value, and sixty days after the election period to pay. If you requested the sale, the election belongs to him. Outside the heirs property statute, there is no right to force a private buyout, though parties regularly agree to one.

Will my case be in Supreme Court or Surrogate's Court?

Partition, ejectment and quiet title are Supreme Court actions, venued in the county where the property sits under CPLR 507. Turnover proceedings by a fiduciary, objections to an executor's sale, and disputes among beneficiaries over an estate's house are Surrogate's Court proceedings. The two courts can both have jurisdiction over the same house, and we often choose the forum based on where the rest of the estate dispute is pending.

Do I get credit for the renovations I paid for?

Only to the extent the renovations increased the property's value, and only if you can prove both the work and the added value. A co-owner who spent $60,000 on a kitchen recovers the amount by which the sale price rose because of the kitchen, which may be more or less than $60,000. Necessary repairs, such as a roof or boiler, are treated as carrying costs and are credited at cost.

About Albert Goodwin

Albert Goodwin is the principal of the Law Offices of Albert Goodwin. He is admitted to practice in the State of New York and concentrates on estate, trust and real property disputes, including partition, buyouts, ejectment of occupants and quiet title matters arising from estates. He appears in the Supreme Court and the Surrogate's Court in the five boroughs and on Long Island. The firm has offices in Manhattan, Brooklyn and Queens. See about Albert Goodwin for more.

This page is general information about New York law and is not legal advice. The timelines and costs above are estimates that vary with the facts, the county and the conduct of the other parties. Outcomes depend on the specific facts of your case. To discuss a dispute over an inherited or co-owned property, call 212-233-1233 or email email@nyestateslawyer.com.