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CONQUERING THE DIVIDE: TO SELL, OR NOT TO SELL?

Real Property

You have decided that you cannot continue to co-own the house or apartment building or farm that you inherited with your siblings, so you are seeking a partition.  The question is, do you split the property or do you sell it and split the proceeds from the sale?

The law provides for two kinds of partitions:  a partition in kind and a partition by sale.  A partition in kind is a physical division of the property, whereas partition by sale allows property owners to sell the entire property and divide the proceeds.  Whether the partition be in kind or by sale, the division of property or proceeds is based on the individual interests of each owner.  The catch, however, is that New York law only allows partition by sale if it appears that a partition by kind would greatly prejudice the owners.

When would a partition by kind greatly prejudice the owners?  The best example is a single-family home.  Depending on the structure, even the subdivision of a multi-family dwelling could be too prejudicial for a court to countenance.  Conversely, if you and your co-owners own an undeveloped plot of land, odds are it can be subdivided without great prejudice to anyone.  Be careful, though, and check your local zoning restrictions.  If your plot of land is subject to zoning restrictions and cannot be subdivided, you may only be able to partition by sale.

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