You and your siblings inherited a parent’s house or the family camp. One of you wants to sell, another wants to keep it. The legal answer to that deadlock is a partition action, and New York has two sets of partition rules: the general statute in Article 9 of the Real Property Actions and Proceedings Law (RPAPL), and, since December 6, 2019, the Uniform Partition of Heirs Property Act (RPAPL 993). The tracks differ in procedure and standards, and a case can start on one and finish on the other.
What a Partition Action Is
A joint tenant or tenant in common in possession of real property “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” (RPAPL 901[1]). The court determines each owner’s share (RPAPL 915), and contributions count: the court should allow the reasonable value of good-faith improvements and repairs that substantially benefit the property, and disparities in down payments and mortgage payments are factors to be considered (Vlcek v Vlcek, 42 AD2d 308, 311 [3d Dept 1973]).
The Ordinary Track: Division Comes First
In the Third Department, which includes Albany, Rensselaer, Saratoga, and Schenectady Counties (NY Const, art VI, § 4[a]; Judiciary Law § 140), “[p]artitioning the property is the preferred method and is presumed appropriate unless one party demonstrates that actual physical division would cause great prejudice to the owners, in which case the property must be sold at public auction” (Loughran v Cruickshank, 8 AD3d 799, 800 [3d Dept 2004]). Whether to divide or sell is a question of fact (id.).
Both outcomes occur. In Loughran, the court affirmed a sale of a large tract owned by three siblings because its varied topography and the lack of viable access to several of the resulting parcels meant it could not be divided without great prejudice (id. at 802). In Hales v Ross (89 AD3d 1261, 1264 [3d Dept 2011]), the court affirmed a physical division where the competing appraisals did not show that the divided parts would be worth materially less than the whole. If the court orders a sale, it is a public auction (RPAPL 915), and “[i]t is irrelevant that the owners may receive a much lower bid at public auction than the property’s appraised value” (Loughran, 8 AD3d at 801).
When Property Is “Heirs Property”
The heirs property act took effect on December 6, 2019 (Laurelton Estates, LLC v Prince, 247 AD3d 19, 28 [2d Dept 2025]) and applies to partition actions filed on or after that date (RPAPL 993[3][a]). The Second Department has described its protections as meant “to ward off deed-theft and equity-stripping schemes” (Laurelton, 247 AD3d at 28), but whether the act applies is decided under its definition. Heirs property is real property held in tenancy in common that meets all of these requirements “as of the filing of a partition action” (RPAPL 993[2][e]):
“(i) there is no agreement in a record binding all of the co-tenants which governs the partition of the property; (ii) any of the co-tenants acquired title from a relative, whether living or deceased; (iii) the property is used for residential or agricultural purposes; and (iv) any of the following applies: (A) twenty percent or more of the interests are held by co-tenants who are relatives; (B) twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; (C) twenty percent or more of the co-tenants are relatives of each other; or (D) any co-tenant who acquired title from a relative resides in the property.”
“Relative” includes individuals related by blood, marriage, adoption, or law (RPAPL 993[2][i]). On those terms, siblings who inherited a house from a parent, with no written agreement addressing partition, can qualify if the property is residential or agricultural.
How the Heirs Property Track Works
If the court finds heirs property, section 993 governs unless all of the co-tenants otherwise agree in a record, and it replaces any inconsistent part of the general statute (RPAPL 993[3][b], [c]). The main steps:
- Settlement conference. The court holds a mandatory conference within 60 days after a request for judicial intervention is filed. Both sides must negotiate in good faith, and if the court determines the plaintiff did not, the action “shall be dismissed” (RPAPL 993[5][a], [e], [f]). Good faith includes considering the statute’s equitable factors (Laurelton, 247 AD3d at 32).
- Court-determined value. Unless the co-tenants agree on value (or an appraisal is not worth its cost), the court orders an appraisal by a disinterested licensed appraiser, holds a hearing, and fixes fair market value “before considering the merits of the partition action” (RPAPL 993[6][b]-[d], [f], [g]).
- Buyout. A co-tenant who requests a sale “has thereby agreed” that the co-tenants who did not may buy that interest at the court-determined value, and they have 45 days after notice of the value to elect (RPAPL 993[7][a], [b]).
- Division preferred. If the buyout does not end the case, the court “shall order partition in kind unless” it finds “that partition in kind will result in great manifest prejudice to the co-tenants as a group” (RPAPL 993[8][a]).
- Open-market sale. A sale is presumptively an open-market sale through a licensed broker at no less than the determined value, unless sealed bids or an auction would be more economically advantageous and in the co-tenants’ best interest (RPAPL 993[10][a], [b]). If no co-tenant timely requested a sale, the action is dismissed instead (RPAPL 993[8][b]).
On the in-kind question, the court must consider whether the property “practicably can be divided”; whether the parcels would be worth materially less than the whole sold, given the conditions of a court-ordered sale; how long the property has been owned or possessed within the family; a co-tenant’s “sentimental attachment”; a resident or other co-tenant’s lawful use and the harm of losing it; whether co-tenants paid their share of taxes, insurance, and upkeep; the price and terms on which a non-relative acquired an interest; and any other relevant factor. No single factor is dispositive (RPAPL 993[9][a], [b]).
The Differences That Matter Most
Both tracks prefer division, but the tests differ. On the ordinary track, a sale requires “great prejudice to the owners” (RPAPL 915). On the heirs property track, division is ordered unless it would cause “great manifest prejudice to the co-tenants as a group,” weighed against factors that include family history and sentiment (RPAPL 993[8][a]; [9][a]). The heirs property track also requires a settlement conference, a court-determined value fixed before the merits, and a buyout right for co-tenants who did not seek a sale, and it uses a presumptive open-market sale in place of the public auction (RPAPL 993[5], [6], [7], [10]).
How a Case Can Change Tracks
In any partition action, the court must determine, after notice and the right to be heard, whether the property is heirs property (RPAPL 993[3][b]). That determination can change the procedure midstream, in either direction.
Ordinary to heirs property. In Laurelton, none of the pleadings invoked the act, and the plaintiff obtained summary judgment, an order of reference, and an order granting partition and sale. Before judgment was entered, the court directed a settlement conference under RPAPL 993(5) (247 AD3d at 21-22). The plaintiff was found not to have negotiated in good faith, the earlier orders were vacated, and the dismissal was affirmed; the court noted that the plaintiff’s pre-conference motion practice “appears calculated to gain an advantage over the defendant in any settlement negotiations” (id. at 35-36).
Heirs property to ordinary. In Flouret v Sagland, LLC (— AD3d —, 2026 NY Slip Op 05009 [2d Dept 2026]), two brothers had transferred their halves of the land, one to a limited liability company and the other to an irrevocable trust. The trial court found heirs property. The Second Department reversed, holding that “trusts and limited liability companies are not ‘individual[s]’ under RPAPL 993” and that property wholly owned by such entities, and not owned by individuals who acquired title from a relative, “cannot be ‘heirs property’” (id. at *1). The case was remitted for a decision under the general statute’s great-prejudice standard (id. at *8). Use matters too: property used for a commercial mining operation and campground was not heirs property because it was not used for residential or agricultural purposes (Smith v Smith, 217 AD3d 1484, 1485-1486 [4th Dept 2023]).
Although Flouret is a Second Department decision, trial courts follow another department’s precedent until the Court of Appeals or their own department rules otherwise (Mountain View Coach Lines v Storms, 102 AD2d 663, 664-665 [2d Dept 1984]). Where property is held through an LLC, a member “has no interest in specific property” of the company (Limited Liability Company Law § 601), so a dispute among members may be a business divorce question rather than a partition case.
Before You Act
If you want out. First work out which track applies, based on how title is held, who acquired title from a relative, and how the property is used as of filing. On the ordinary track, a sale requires proof that division would cause great prejudice. On the heirs property track, asking for a sale means agreeing that the other co-tenants may buy your share at the court-determined value, and a plaintiff who does not negotiate in good faith risks dismissal.
If you want to keep the property. Under section 993, the buyout belongs to co-tenants who did not request a sale, and its deadlines are short: 45 days to elect, then payment by a court-set date at least 60 days after the court’s notice of the elections (RPAPL 993[7][b], [e]). Consider financing early. On either track, keep records of what you paid; in Hales, a reimbursement claim failed because the documentation “did not include any actual bills or canceled checks” (89 AD3d at 1264).
Frequently Asked Questions
How is an heirs property partition different from a regular partition in New York?
Under the general statute, the court divides the property unless division would cause great prejudice to the owners, and otherwise orders a public auction. Under RPAPL 993, the court fixes value, lets co-tenants who did not seek a sale buy out those who did, and then orders division unless it would cause great manifest prejudice to the co-tenants as a group; a sale is presumptively on the open market.
Can a co-owner force the sale of inherited property in New York?
A co-owner can sue for partition, but a sale is not automatic. On the ordinary track, the co-owner seeking a sale must show that division would cause great prejudice. If the property is heirs property, the other co-tenants may buy out the co-owner who requested the sale at the court-determined value.
Does the heirs property act apply if a trust or LLC owns the property?
The Second Department has held that trusts and LLCs are not individuals under RPAPL 993, and that property wholly owned by such entities, and not owned by individuals who acquired title from a relative, cannot be heirs property.
Can a partition case switch between the two sets of rules?
Yes. In any partition action, the court must determine whether the property is heirs property. One appellate case moved onto the heirs property track after orders had been entered under the general rules; another was sent back for decision under the general statute after the appellate court held the property was not heirs property.
Toporowski Law has represented co-owners seeking a sale and co-owners seeking to keep the property in New York partition actions. If you share ownership of property in the Capital Region and the owners cannot agree, contact our real estate disputes practice.
Attorney Advertising. This article is general information about New York law, not legal advice, and does not create an attorney-client relationship. Every situation is different; consult a lawyer about your specific circumstances. Prior results do not guarantee a similar outcome.
