Dear ziggy1234,
Unfortunately, it is not unusual for relatives to eventually end up in
a dispute over lands they jointly acquire or inherit, nor for one
joint tenant to try to lay claim to a choice segment of a jointly held
piece of land. I am assuming for the purposes of the question that it
is permissible under local land use and zoning regulations to
partition the piece of land.
I. The Statute Governing Partition
The partition of real property is governed by Chapter 81, Article 9 of
the New York State Consolidated Laws. This Article is online on the
New York State Assembly website:
http://assembly.state.ny.us/leg/?cl=100&a=11
Specifically, Section 901 provides that "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,
may maintain an action for the partition of the property, and for a
sale if it appears that a partition cannot be made without great
prejudice to the owners."
II. What Legal Steps Must Be Taken To Partition For Any One Owner?
When it applies, the steps below contain references to Chapter 81,
Article 9 of the New York State Consolidated Laws, which can be
accessed through the link provided above.
* A legal action must be commenced by one or more sibling co-owner,
naming all of the other sibling co-owners as defendants. (Sections
901, 903). All nine co-tenants must be named as parties. (Section
903). The lawsuit will ask the court for the relief desired - e.g.,
partitioning the land into nine lots, or ordering the sale of the land
and dividing the proceeds nine ways.
* The parties will engage in pretrial discovery, during which time
they will exchange information about the case, and usually their
theories as to how the property should be divided or sold.
* In a matter involving siblings, usually the siblings will break into
two or more groups, with each group advocating a particular outcome.
The siblings in these groups can work collaboratively, perhaps even
sharing an attorney. If the parties agree to work from a specific
survey, each co-tenant (or each group) can present a plan to divide
the property based upon that survey. If not, the co-tenants who don't
accept the survey will likely commission one of their own, and present
a plan based on their own separate survey. It will likely be necessary
to involve real estate appraisal experts, who will express an opinion
as to whether the proposed divisions represent lots of approximately
equal value.
* If it is possible for the trial court to determine the shares of
some of the co-tenants, but not the others, it may be possible for the
court to grant an interlocutory judgment (meaning, a partial judgment
made even though the litigation is continuing), partially partitioning
the land. (Section 915-916).
* If the judge concludes that the land cannot be fairly partitioned,
the judge may order the land (or a part thereof) sold at public
auction. (Section 915). Pleasee note that this will probably result in
a sale at *less* than market value.
* The rights of creditors (if any) with liens against the land are to
be protected in the event of sale or partition. (Sections 913, 929,
962).
* If partition is ordered, the court will appoint commissioners to
determine how the property is to be divided, and who is to receive a
share. If necessary, the commissioners may hire a surveyor and an
assistant surveyor to assist with developing their plan for the
division of the property. The commissioners will decide which
co-tenant receives any given lot. (Section 921). The fees associated
with the commissioners and the surveyors they hire are taxed as costs,
payable by the plaintiff. (Section 981).
* In the event of partition, the final order will reimburse the
plaintiff for his taxable costs in bringing the action for partition.
(If one sibling brings the case and the other eight are defendants,
each of the other eight will reimburse 1/9 of the costs incurred by
the plaintiff. (Section 981). Similarly, the plaintiff will be repaid
for the defendants' share of the costs out of the proceeds of a sale.
The plaintiff will be responsible for the remaining 1/9, his own
personal share.) The reimbursement of costs does not, however, include
reimbursement of attorney fees.
The net effect of litigation is typically that the parties spend a lot
of money on surveys, court costs, and attorney fees, and end up with a
partition plan that many, most, or perhaps all will find
unsatisfactory. Should the property be sold at auction, they will
likely incur similar expenses but not even recoup full market value
for the property when it is sold. If at all possible it makes sense to
try to resolve the division amicably, through negotiation. Another
alternative is a private arbitration, which if planned well should be
faster and cheaper than litigation.
III. If One Owner Refuses to Pay Taxes, What Can Be Done?
With joint owners, there is a joint liability for the tax obligation.
Unfortunately, the one-ninth owner's share of the taxes cannot be left
unpaid, and it is understandable why the other eight siblings may
resent the ninth's refusal. The solution that divests the ninth owner
of his interest is, once again, a partition action. The other eight
siblings can ask, as part of that process, to be credited for their
disproportionate payment of taxes, maintenance, or other costs
associated with the property.
An alternative which does not require partition of the property or an
action to eliminate the ninth sibling's interest is to file a lawsuit
to collect the outstanding share of the tax bill from that sibling.
With nine co-owners, this could probably be done in small claims
court. (Please note that lawsuits of this type between family members
can be very unpleasant for all involved.) A guide to small claims
litigation is offered by the City of New York, at:
http://www.nyc.gov/html/dca/html/smallclm.html
IV. If One Owner Wants to Sell his One-Ninth Share, How Is It
Partitioned?
If the owner wants to sell his one-ninth share to the other siblings,
it may be possible to reach an agreement. For example, the owners
could have the property appraised, and the other eight siblings could
collectively pay the one who wants to sell one ninth of the appraised
value to buy that sibling's share. That sibling could quitclaim his
interest to the others in return, leaving eight co-owners instead of
nine.
If the sibling wants to sell his one-ninth share to somebody other
than his siblings, and the siblings cannot agree on how the land
should be partitioned to accommodate the sale, it will be necessary to
go through the legal process outlined above. (Note that, as the
sibling's share is worth no more than one ninth of the total property
value, a court would be unlikely to award more, meaning that if the
other siblings are willing to purchase the interest this is a wise way
to settle the issue.) Similarly, if the other eight siblings do not
want to purchase the ninth sibling's share, it will be necessary to go
through the legal process.
V. What About "Birth Order Partitioning" or Other Partitioning
Arrangements?
If all nine owners come to an agreement, they can divide the property
in the manner of their choosing. One solution might be to divide the
property into nine pieces, with each sibling receiving a separately
titled lot. Another solution might be for two siblings to receive
separately titled lots, while the other seven continue as joint
tenants in the remaining land.
Partition is not always as easy as it seems. For example, large tracts
of undivided land may be criss-crossed by easements for electric or
gas lines, railroads, or other third party interests. Thus, as part of
the process of partitioning the land, it is advisable to obtain a
survey, and to try to produce separate lots of approximately equal
value. This may necessitate that some be greater in size than others -
if easements are present, they can significantly reduce the value of
certain portions of the land, and an unfortunately placed but equally
sized lot might have little value as compared to the others.
Following division, it is difficult to incorporate all of the same
features and benefits into each parcel. If the owners agree to a means
to resolve this problem, whether by birth order, drawing straws, or
some other means, there is no reason they cannot do so. However,
unless the granting instrument dictates that "birth order" be followed
in the event of partition, there is nothing that would legally compel
that method to be followed. As indicated above, if partition is
ordered by the courts, the allocation of the resulting parcels of land
is at the discretion of the commissioners appointed by the court.
VI. Additional Considerations
Something that I cannot address from your question is whether or not
partition is possible, or whether it could be partitioned into nine
separate parcels, given local land use and zoning regulations. If it
is not possible to partition the land, the same court proceedures can
be followed to require its sale and a division of the proceeds.
Research Strategy
In addition to direct experience handling this type of partition issue
between relatives, I utilized the following research strategies:
Browsing New York Statutes online, on the New York State Assembly
website:
http://assembly.state.ny.us/leg/?sl=0
Google Search - new york small claims court
://www.google.com/search?q=new+york+small+claims+court
I do hope that this matter can be reasonably and amicably resolved
without going to court, and I wish you the best of luck. If you
require clarification or additional explanation, please don't hesitate
to ask.
- expertlaw |
