How a Partition Action Works in New York: Step by Step Under RPAPL Article 9

Who Can File a Partition Action in New York

RPAPL § 901 allows a person who holds real property as a joint tenant or tenant in common to bring an action for partition, and for a sale if the property cannot be divided without great prejudice to the owners. The owner must hold an estate of inheritance, for life, or for years. In practice that covers almost every co-owner whose name is on the deed.

• Tenants in common: any co-owner may file, regardless of the size of the share. A ten percent owner has the same right to partition as a ninety percent owner.
• Joint tenants with right of survivorship: a joint tenant may file. Filing severs the survivorship feature as to that interest.
• Tenants by the entirety: spouses who hold title this way cannot partition while married. The property is divided through a separation agreement or equitable distribution in divorce, not under Article 9.

Partition is treated as a right that comes with co-ownership, but it is an equitable action. The court adjusts the equities between the parties before dividing the proceeds (Manganiello v. Lipman, 74 AD3d 667 [1st Dept 2010]). If you are unsure how your deed describes the ownership, see a house held in two names.

Where the Case Is Filed

A partition action is filed in the Supreme Court of the county where the property is located. CPLR 507 fixes venue in that county for actions affecting title to real property. In New York City that means New York County for Manhattan, Kings County for Brooklyn, Queens County, Bronx County, and Richmond County for Staten Island.

Two jurisdictional points come up often in estate matters:

• Property still in an estate: partition belongs in Supreme Court, but while an estate is open the executor or administrator may have authority to sell the property under EPTL 11-1.1, and the Surrogate's Court can authorize a sale under SCPA Article 19. Which court you use depends on whether title has passed to the heirs or is still being administered. See our NYC probate timeline and estate administration pages.
• Co-op apartments: a co-op is owned through shares in a corporation and a proprietary lease. Those are personal property, so RPAPL Article 9 does not govern them. The First Department has allowed an equitable action to divide co-op interests between co-owners (Chiang v. Chang, 137 AD2d 371 [1st Dept 1988]), but the statutory steps described below, including the referee's sale, do not apply in the same way. Condominium units are real property and are partitioned under Article 9.

Step 1: Complaint and Notice of Pendency

RPAPL § 911 requires the complaint to describe the property and state, so far as known, the rights and interests of every person with an interest in it. That includes each co-owner, any mortgage lender, lienholders, and judgment creditors. Leaving out an interested party can delay the case or leave the eventual sale clouded.

Along with the complaint, the plaintiff files a notice of pendency under CPLR 6501 in the county clerk's office. The notice is recorded against the property and warns buyers and lenders that the title is in litigation. It does not freeze the property, but it makes a sale or refinance by another co-owner impractical while the case is pending. A notice of pendency lasts three years and may be extended on motion.

In the New York City courts, buying an index number and filing the summons, complaint, and notice of pendency usually takes a few days to two weeks, depending on how quickly the title report and deed history can be assembled.

Step 2: Service and Answer

Every defendant must be served under CPLR Article 3. A defendant served in New York by personal delivery has 20 days to answer; one served by other means, or outside the state, has 30 days. Co-owners who cannot be located, which happens often with inherited property where a sibling moved away years ago, may need to be served by publication after a court order, which adds one to two months.

A defendant co-owner may:

• admit the co-ownership and consent to partition, which is common;
• dispute the ownership percentages stated in the complaint;
• counterclaim for an accounting of money the defendant paid toward the mortgage, taxes, insurance, or repairs;
• assert a defense such as an agreement among the owners not to partition, or a claim that the plaintiff's deed is invalid.

If you have received a partition complaint, the answer deadline is the first thing to calendar. See responding to a buyout demand on a jointly owned residence.

Step 3: Determining Whether the Property Is Heirs Property (RPAPL § 993)

New York enacted its version of the Uniform Partition of Heirs Property Act as RPAPL § 993, effective December 6, 2019. Early in the case the court decides whether the property is "heirs property." In general terms, that is property held as tenants in common, with no written agreement among all the owners governing partition, where one or more co-owners received title from a relative and at least one of the statutory thresholds is met, such as twenty percent or more of the interests being held by relatives.

If the property is heirs property, the ordinary sequence changes in four ways:

1. The court holds a settlement conference and the parties are expected to negotiate in good faith.
2. Unless the owners agree on a value, the court orders an appraisal by a disinterested licensed appraiser and notifies the parties of the appraised value.
3. The co-owners who did not ask for a sale get a window, 45 days under the statute, to elect to buy the share of the co-owner who did. Payment is due within 60 days after the election period.
4. If no buyout occurs and the property cannot be divided in kind, the court orders an open-market sale through a licensed real estate broker at or near the appraised value. A public auction is a last resort if the open-market listing fails.

These steps add three to six months to a New York City partition case but usually produce a higher sale price than an auction. The buyout mechanics, how the price is set, and how to finance the purchase are covered on buying out co-heirs of an inherited residence and are not repeated here.

Step 4: Interlocutory Judgment and Appointment of a Referee (RPAPL § 915)

Once the pleadings are closed, the plaintiff usually moves for summary judgment on the right to partition. Because the right follows from the deed, these motions are frequently granted unless the defendant raises a genuine dispute over title. In the New York City Supreme Courts, a summary judgment motion takes roughly three to six months from filing to decision.

The court then issues an interlocutory judgment under RPAPL § 915. The judgment:

• declares each party's percentage interest;
• determines whether the property can be physically divided. For a single-family house, a two-family house, or a condominium unit, the answer is almost always no, and the court directs a sale;
• appoints a referee, usually a local attorney, to ascertain the rights of the parties and the liens against the property and to conduct the sale.

Vacant land and some multi-building parcels can be divided in kind. In that case the court appoints commissioners to lay out the division instead of ordering a sale.

Step 5: The Referee's Hearing and Accounting

Before the sale, or sometimes after it, the referee holds a hearing on the credits and charges between the co-owners. The referee takes evidence on who paid the mortgage, taxes, insurance, and repairs, who collected rent, and who lived in the property. The referee then reports to the court, and the judge confirms or modifies the report.

Two New York rules shape this stage. First, a co-owner who lived in the property is not charged use and occupancy unless that owner ousted the others, meaning the others were excluded or their demand for access was refused. Second, courts generally credit improvements only to the extent they raised the property's value, not what was spent. The accounting rules, the ouster requirement, and documentation strategy are discussed in full on a brother living rent-free in the inherited house, a beneficiary living in an inherited house, and estate and co-owner accountings.

You need to preserve bank statements, cancelled checks, tax bills, and contractor invoices from the start of the case. Referees do not credit undocumented payments.

Step 6: Sale, Confirmation, and Distribution

For property that is not heirs property, the referee sells at public auction after publishing notice of sale, typically in a newspaper designated by the court, for several weeks before the auction date. The parties may, and usually do, stipulate instead to a private sale through a broker, which the court will approve. For heirs property, the open-market listing under § 993 is mandatory unless the owners agree otherwise.

After the closing the referee files a report of sale. The court confirms the sale and enters a final judgment directing distribution of the proceeds in this order:

1. referee's fees, broker's commission, transfer taxes, and other costs of the sale;
2. mortgages and liens against the property, or against a particular owner's share;
3. costs of the action and any counsel fees the court allows under RPAPL § 981;
4. the balance to the co-owners according to their percentage interests, adjusted by the accounting.

From the order directing sale to the distribution of proceeds, expect four to nine months in New York City, longer if the property is tenant-occupied or has title problems.

How Long a Partition Action Takes in New York City

Court calendars differ by county, and Kings and Queens County cases often move more slowly than New York County. The following ranges reflect what we see in the five boroughs:

• Filing through service and answer: one to three months, longer if a defendant must be served by publication.
• Heirs property determination, appraisal, and buyout window (if § 993 applies): three to six months.
• Summary judgment and interlocutory judgment: three to six months from the motion.
• Referee's hearing on the accounting: two to six months, depending on how contested the credits are.
• Sale through confirmation and distribution: four to nine months.

A case that settles after the complaint is served can be over in three to six months. A case that goes through every stage without agreement typically runs 12 to 24 months. A trial on disputed title or a heavily contested accounting can push it past two years.

What a New York Partition Action Costs

Costs fall into three groups: attorney fees, court and litigation costs, and costs of the sale that come out of the proceeds.

Attorney Fees

Most New York partition attorneys, including our firm, bill hourly, because the work depends on how the other owners respond. An initial retainer deposit is typical and is drawn down as work is billed. As a general guide, a case that settles early may cost one party $10,000 to $25,000 in legal fees. A case that goes through the referee's hearing and a court-supervised sale commonly costs $25,000 to $50,000. Cases with disputed title, expert appraisers, or a trial can exceed that. RPAPL § 981 lets the court award costs, and in some circumstances counsel fees, from the sale proceeds when the work benefited all the owners, but you should not count on recovering your fees from the other side.

Court and Litigation Costs

• Index number: $210 (CPLR 8018).
• Request for judicial intervention: $95. Motion fee: $45 per motion. Note of issue: $30.
• Process service: roughly $75 to $250 per defendant in New York City; publication service runs higher.
• Title search and deed history: several hundred dollars.
• Appraisal: $500 to $1,500 for a residential property; required under § 993 unless the owners agree on value.
• Depositions: court reporter and transcript costs if the accounting is contested.

Costs of the Sale (paid from proceeds before distribution)

• Referee's compensation: fixed by the court under CPLR 8003. The statutory default for conducting a sale is $500, but in partition actions courts regularly award more to reflect the hearing and reporting work, and the parties can agree to a figure.
• Broker's commission: commonly four to six percent of the sale price for an open-market sale.
• New York State transfer tax: 0.4 percent of the price for most residential sales.
• New York City real property transfer tax: 1 percent of the price for residential sales of $500,000 or less, 1.425 percent above that.
• Payoff of mortgages and liens and ordinary closing costs.

Before filing, run the numbers: your percentage of the likely sale price, less your share of the sale costs and lien payoffs, less your own legal fees. If the result is close to what a co-owner is offering to buy you out, settlement is usually the better choice. See offering a buyout of a jointly owned residence.

Time Limits That Affect Partition

There is no statute of limitations on the right to partition itself. As long as the co-tenancy exists, any co-owner may file. Two time rules still matter:

• Adverse possession between co-owners (RPAPL § 541): a co-owner in sole possession is presumed to hold for all the co-owners for the first ten years. Only after that does exclusive possession start the ten-year adverse possession clock. A sibling who has lived in the family house for 25 years may assert that the other owners' interests have been extinguished. Claims like this are fact-specific and are raised as a defense in the partition action.
• Stale accounting claims: credits for payments made many years ago may be challenged as time-barred or unproven. The older the contribution, the stronger the documentation needs to be.

Three Common New York Scenarios and How the Procedure Plays Out

These are typical fact patterns, described to show which steps apply. They are not descriptions of specific cases or results.

Siblings inherit a Queens two-family house; one sibling lives there

Title passed to three siblings as tenants in common through the estate. One lives in the ground-floor unit and collects rent from the upstairs tenant. Because the owners are relatives who took title from a parent, § 993 applies. After the complaint, the court orders an appraisal, and the resident sibling has 45 days to elect to buy the shares of the siblings who want to sell. If no buyout closes, the house is listed with a broker. At the referee's hearing, the collected rent is charged against the resident sibling's share, and the resident sibling's payment of taxes and insurance is credited, with use and occupancy charged only if the other siblings were excluded.

Unmarried couple bought a Brooklyn condominium together and separated

Title is held as joint tenants. The condo is not heirs property, so § 993 does not apply. The partner who moved out files in Kings County Supreme Court, records a notice of pendency, and moves for summary judgment. The interlocutory judgment severs the joint tenancy, declares each party's half interest, and appoints a referee. Most cases of this type settle with one partner refinancing and buying out the other before the referee's sale.

Two investors own a Manhattan rental building; one wants out

The owners hold title as tenants in common with no written agreement on exit. The departing owner files in New York County. The building cannot be divided in kind, so the court orders a sale. The accounting focuses on capital improvements, management fees one owner paid himself, and rental income. Because commercial property attracts competitive bids, the parties often stipulate to a brokered sale rather than an auction.

Frequently Asked Questions About New York Partition Procedure

Can the other owners stop a partition action?

Rarely. A co-owner can defeat partition only by showing a written agreement waiving the right, a defect in the plaintiff's title, or that the plaintiff is not a co-owner at all. Disagreement about the sale price or timing is not a defense; it is handled at the sale and accounting stages.

Does the property have to be sold at auction?

Not usually. Heirs property under § 993 must be listed on the open market first. For other property, the referee's sale defaults to an auction, but the parties almost always agree to a brokered sale, and the court will approve it.

Can I file partition while the estate is still in Surrogate's Court?

Real property vests in the heirs or devisees at death, subject to the fiduciary's power to administer it. If the executor or administrator is actively marketing the property under SCPA Article 19 or EPTL 11-1.1, the Supreme Court may defer to that process. If the estate is stalled and no fiduciary is acting, a partition action is often the practical route. Which path is faster depends on the stage of the estate.

Who pays the referee?

The referee's fees come out of the sale proceeds before the owners are paid, so all owners bear them in proportion to their shares.

Can a co-op apartment be partitioned?

Not under RPAPL Article 9, because co-op shares are personal property. New York courts have allowed an equitable action to divide co-op interests, but the referee-sale procedure does not apply, and the co-op board's approval rights over any transfer remain in force.

About the Author

This page was written by Albert Goodwin, a New York attorney whose practice is concentrated in estates and in disputes between co-owners of real property. The Law Offices of Albert Goodwin handles partition actions in the Supreme Courts of New York, Kings, Queens, Bronx, and Richmond Counties and in the surrounding counties. If you are a co-owner who wants to sell, or a co-owner who has been served with a partition complaint, we can help. Call 212-233-1233 or email email@nyestateslawyer.com.

This page is general information about New York procedure and is not legal advice for any particular situation. Statutory fee amounts and court procedures change; confirm current figures before relying on them.