Is Partition Right for You?

I’ve been getting a variation of this question a whole lot lately: “Do I have a right to be bought out of my interest in a house?”

The common scenario goes like this: your parents owned a house and when they died, they either left the house to you and your siblings in a will. Maybe they transferred the house to you during their lives and retained a life estate. One of your siblings lives in the house rent free. You may be experiencing some financial difficulties of your own or you just want your share of the property now. You approached your sibling about selling but they’ve either reacted negatively or just ignored your request. Now, you’re stuck.

My advice is always to work it out with your family.

I know what you’re saying – you’ve already tried to work it out, but your bullheaded brother and your indifferent sister won’t take action (i.e., they won’t do what you want to do). Your sibling that’s living in the house argues that he is maintaining the property and paying the taxes so you don’t have to go into your pocket. In the meantime, he’s also not paying rent and you could really use your $250,000 share of the property right about now.

My advice remains to work it out. You must work it out.

Your alternative is a partition action. You’re suing your brother and your sister. You’re hiring an attorney and having a process server go to your brother and sister’s houses and serve them with a summons and complaint. You’re going to be in litigation with your siblings. How do you think your parents would have liked that? Does it make it better or easier to sue your brother now that your parents died?

That’s the emotional part, which is pretty crappy. OK, let’s say you’ve moved past the emotional issues involved with suing your siblings. You hate your siblings and always hated them. You never see them and don’t care to see them ever again. The communication that your lawyers are about to do with each other is more than the communication that you’ve engaged in with your siblings in your entire adult lives. Cool, let’s move on.

Partition actions cost money. A lot of money. You have to hire a lawyer and pay a substantial retainer. The retainer will be substantial because experienced real estate attorneys know that partition actions take a long time to complete. You have to pay court costs - $210 to start an action, $35 for a notice of pendency (more in certain counties – I’m looking at you, Nassau County), a few hundred dollars for a process server. You are going to hire an appraiser to determine how much the property is worth; you are going to pay a rental real estate expert to determine what the fair rental value of the property is. You may have to spend time sitting in a hearing before a court-appointed referee to determine the value of the new bathroom that your brother put in, or the costs of landscaping, or what the property taxes are. You may not have taken away the senior citizen STAR exemption from the property taxes, so someone is going to be responsible for paying that back.

After about three years of that, the house will get auctioned off, and whatever percentage the court said is yours, you’ll get after a closing. By the way, you never get more at an auction that what you would have gotten if you would have just sold the property normally.

I know that you may already be pushed to your breaking point. There is definitely a time when you need to take legal action – if the person living there isn’t even paying the taxes or utilities, or if you yourself are facing foreclosure or eviction and really need the money. Just be aware of what you’re getting into.

Worse comes to worse, point your sibling that doesn’t want to sell to this blog post and see if that convinces them to sell amicably.