CALL FOR A FREE CONSULTATION

The Definitive Guide to Real Estate Partition Actions In New Jersey
Explained by A NJ Partition Lawyer

What is a New Jersey Partition Action?

Book A Free Consultation

When co-owners don’t agree with what to do with the property. A New Jersey Partition lawyer can help bring a partition action can be used to divide the property into separate lots or most often have the property sold to divide the proceeds equitably or have one side by the other out at a fair price. It is best when this is done voluntary when all co-owners agree. If a co-owner does not agree to what is happening with the property they partially own they can move file a partition action lawsuit in New Jersey.

The word “partition” means to divide into parts. A partition action in New Jersey refers to the division of property among co-owners or most of the time the actual sale of the property resulting in the division of the received funds from the sale. A New Jersey partition action is a lawsuit that is used to divide or sell real property owned by two or more co-owners when one or more owners do not agree to the sale or splitting of the property or the general management of the property such as maintenance, how it is used or who is responsible for it. The court may order partition through actual division, or through sale of real estate.

Dividing property is rare and normally only applies to vacant land. When actual physical partition is ordered this is called “Partition in Kind.” An example of dividing property would be if two brothers owned 1000 acres of farmland together.  If the land is equal in value through out, it would not be hard for a judge to appoint a commissioner to divide the property equally between the brothers, but if they are not happy with the proposed division, then sale of the property is an option where the judge could allow one side to buy the other side out or have the property sold on the open market and the profits spit between the brothers.

An example of selling property would be if the property cannot be easily divided such as a 1 story house. It is hard to evenly divide a house, so the house would be sold and the money divided between the owners.

Where is a New Jersey Partition Action lawsuit filed?

When Partition is the only cause of action a New Jersey Partition Action lawsuit is filed in the Chancery Division, General Equity division of the Superior Court of New Jersey in the county the property is located. NEW JERSEY COURT RULE 4:3. DIVISIONS; VENUE; TRANSFER OF ACTIONS 4:3-1. Divisions of Court; Commencement and Transfer of Actions 

If any other form of relief is sought that affects the family or family-type relationship, such as divorce, termination of domestic partnership, dissolution of civil union, spousal support, child support, custody, parenting time, property distribution or palimony, the matter shall be filed and heard in the Chancery Division, Family Part division of the Superior Court of New Jersey generally where the family resides. A property could be in Hudson County, but the family resides in Monmouth County. Monmouth County would take precedence for the court to hear the matter.

Who can seek a Partition Action in New Jersey?

Any co-owner(s) may seek a partition of property, as long as he or she has not previously waived his or her right to do so or is prohibited by contract (Even in these cases it still may be possible to file a partition action.). Two or more people can own a property together and it can be held in different ways. Co-owners such as Tenants In Common (TIC), Joint Tenants, Joint Tenants With Rights of Survivorship (JTWRS), heirs of an estate, members of a joint venture (this includes a boyfriend and girlfriend when they buy a house and do not formalize their agreements and eventually separate and have to involve the court to divide their interests. See ALENA KOLEGAROVA v. EDWARD SKUBINSKI )

Many times business owners, partners, friends including boyfriends and girlfriends may also find themselves in the need to file a partition action and especially family members which we will get to shortly. Often this type of joint property ownership can result in disputes not foreseen during happier business times when the property was purchased whether it is commercial property or vacant land and everyone thought problems would never arise. Business partners do not always iron out how a property will be managed prior to a purchase. Some partners may value long term appreciation while others may want to take out as much profit as soon as possible. These conflicting goals make it difficult to prioritize or agree on cost of maintenance, or when to pay for improvements to the property or even an agreed time to pay taxes. For example, one group of co-owners may want to cash out by selling a property, but the other co-owner group can’t afford to buy them out or does not want to sell as it is a long term investment for them.

If any other form of relief is sought that affects the family or family-type relationship, such as divorce, termination of domestic partnership, dissolution of civil union, spousal support, child support, custody, parenting time, property distribution or palimony, the matter shall be filed and heard in the Chancery Division, Family Part division of the Superior Court of New Jersey generally where the family resides. A property could be in Hudson County, but the family resides in Monmouth County. Monmouth County would take precedence for the court to hear the matter.

Can family members seek partition in New Jersey?

Basically, all family members including parents, children, aunts, uncles, cousins, nieces, nephews, in-laws, grandparents can bring a partition action lawsuit in New Jersey if they own or have an interest in real property. Family disputes often arise that no one ever thought would happen when money and property are involved that were not anticipated when people bought the property, or the property was left through an inheritance to family members. Family disputes may also center around who should live at a property. Who is responsible for repairs and maintenance or paying for the general upkeep. Who is responsible to pay the mortgage and taxes. Disputes such as these can create substantial family turmoil. As an example. imagine one sister out of 4 siblings was caring for an ailing mother in the family house for 10 years before the mother passed away without a will. Now all of the children will take equally of the home as heirs to the estate of their mother under New Jersey’s intestate laws. The person living in the home may not want to sell or feels they are entitled to more as they gave up her life to take care of Mother, at which point the other siblings may just want their share of the value of the childhood home. In situations like this, the person living in the home could buy out the other siblings at fair market value. At times this firm has both had to have the sole provider removed from the home to sell the property, and in others we have represented the family member who did not want to leave to purchase the home. When families cannot agree, the only people that make money are the lawyers. So, we recommend mediation prior to court action when possible for partition actions.

What is the controlling law on Partition Actions in New Jersey?

The process and legal authority for performing a partition action is governed by New Jersey under the statutory framework of N.J.S.A. 2A:56-1 et seq. Partition is not a new invention of the legal world. Partition suits date back to at least the reign of King Henry VIII in England according to the New Jersey Partition Action Wujciak v. Wujciak, 140 N.J. Eq. 487, 489. (Ch. Div. 1947).

What happens during a Partition Action Lawsuit in New Jersey?

The first step in a real estate partition is to file a partition action lawsuit in the Chancery Division of the County Superior Court where the property is located. All of the co-owners must be named along with anyone with present or future interests in the property. This includes people who have liens against the property such as judgement creditors the IRS, the State of New Jersey and one that would hold a tax lien certificate. Etc. Also, a “lis pendens” is also filed at the same time as the petition. A lis pendens  notifies everyone who may come into contact with dealing related to the property that a court action is taking place. Lis pendens are also filed for mortgage foreclosures, tax lien foreclosures, and any lawsuit in general that involves the property to make sure that the public is on notice the property is subject to litigation. Lis Pendens lists for New Jersey are recorded at the county recorder’s office of the county of where the property is located.  List of Lis Pendens for the state of New Jersey can be purchased from the State of New Jersey or Njlispendens.com. What happens after everyone is served, can go one of many different ways.  The other co-owners may file an answer disputing a co-owner’s right to ask for partition. This alone can increase the litigation costs. If someone starts filing motions to ask for other things not involved with the partition or pro se defendants start demanding things not passed in the law things can escalate quickly in costs. If everyone is on board with the partition, odds are the action would not have ended up in court, but once an attorney explains someone’s rights to them in regards to a partition action it then generally becomes less contentious when it is less about what a person feels is right, compared to what the court is most likely going to rule. However, when pro se defendants, those unrepresented by an attorney, become tied up in litigation and want to enforce their rights based on cases they found from 50 years ago or in another state, it can be frustrating for everyone involved including the court.  We had one case where a defendant told the court no less than 6 times they were going to get an attorney but failed to do so.  We know this as the court forwards all correspondence to the attorneys on a case as to not have ex-parte communication with someone on in a case.  Basically no one gets to speak to the court without everyone knowing what is happening. Once everyone is on board that stopping a partition action is unlikely, then It is not unusual for a party to the partition action to seek an adjustment in what they are to receive of the sale proceeds by asking the Court to take into account their fare share of expenses.  So the Court will ask that adjustments be made for any taxes, maintenance, improvements or other expenses paid by an owner in excess of that owner’s fair share be credited. And at the same time ask that any co-owner that was using the property or receiving rent that was not shared have their portion of the proposed sale be reduced depending on how the ownership interest were set-up. For instance a tenant in common is not going to have to pay rent because another tenant in common chooses not to live in the property.  The New Jersey Courts have a system in place to make sure that a partition action is equitable in the way that funds are divided based on ownership interests.

Are people credited for expenses occurred prior to a Partition Action in New Jersey?

People will be credited or debited for the expense they incur and for the usage of the property above and beyond their fair share. For instance, if four siblings now own a house after their parents passed, and two live in the property and two do not, while one pays the taxes and another pays the mortgage they all will have credits or debts of their share of the proceeds.  The two living in the house would have the fair value of market rent deducted from their share of sale proceeds.  If one of the siblings living there put on a new roof to improve the value of the house and protect the home from being damaged that was not fully covered by insurance and the other siblings agreed, that sibbing would be credited for the repair from the sale proceeds.  If on the other hand the let say one sibling hired his son to paint the house against the wishes of the other siblings while the house did not need painting, since the work did not add to the value of the home and no one agreed to the expense this would most likely not be allowed as a credit.  Paying the mortgage and taxes above the siblings fair share would also be credited from the sale.

As NJ Real Estate Attorneys, we have had to mediate, negotiate and sue parents, children, cousins, brother and sisters, half-sisters, half-brothers, adopted children, former spouses, in-laws and distant cousins all to partition property.  We have had family trees that spanned 4 generations that was never deeded the property for the last two generations for probate.  The scope of these partition actions can seem enormous, but when everyone realizes that they either agree to partition and sell or no one gets a dime, or the one person who wants to argue is going to eat the costs of the suit, most families eventually come to understand partition now is better than lawsuit and then tax lien foreclosure later.

How is a Property sold in a New Jersey Partition Action?

Unless all the co-owners agree to a private sale, any sale ordered by the court will be a “public sale”. If a public sale is ordered, the sheriff of the county will sell the property at auction. This tends to generate less money than a private sale, as most people who go to auctions are buying as is without any inspections and taking a risk so they expect to pay less for a property than on open market.

After the sale the sheriff will distribute the money to the parties as specified in the judgment or deposit the money with the Clerk of the Superior Court. If the money is deposited with the Clerk, an order for distribution from the court will be needed to release the funds.

A private sale normally raises more money and is subject to court approval. The parties involved in the partition action lawsuit will be given notice of the sale which should include affidavits of two independent appraisers that show that the deal is fair. If a co-owner objects, the only ways the objection will win is if a better bona fide offer is proffered, or if it can be shown the value of the property exceeds the proposed contract price by an amount that makes the offer unacceptable. An offer of $5,000 under the lowest appraisal will most likely go through on a $500,000 property if no better offer comes in as a 1% difference is unlikely to stop a sale, however an offer $50,000 under the appraisal vale may or may not go through because it is too low.

What happens to commercial property in Partition Actions in New Jersey?

If there is an on going business such as a commercial property that is being sought to be partitioned, the court may appoint a receiver if everyone cannot agree on the way the property should be run.  A Court Appointed Receiver will collect rents and any other income generated by the property and pay the expenses associated with he property during the course of the partition action. This is another added expense that the owners would be paying for when they cannot agree.

Can a New Jersey partition action be stopped?

In most cases, the answer is “no.” Unless the person who brought the partition lawsuit has no standing the partition action will likely succeed. Or if there was a contract in place barring partition it also may require arbitration or mediation, or the person had previously waived their right to partition. However, there may be legal defenses that can prevent or slow a forced sale or allow for a greater advantage in the lawsuit for the defendant trying to stop the sale.

For instance, if someone lives in the property, negotiating when they move out or what they pay for rent is possible.  Credits for improvements can also be negotiable. Most people prefer to settle a partition action lawsuit before a judge decides it for them.

A partition action cannot be “stopped” by a party who does not wish to sell the property unless the parties can resolve the dispute. The action can be stopped when everyone agrees to the next steps.

What are the pros and cons of a partition action in New Jersey?

We always recommend mediation prior to bringing a Partition Action Lawsuit. However, if you are at your wits end, a partition action may be your only option.  There are pros and cons to a partition action lawsuit in New Jersey. The main pro is that a partition action breaks a stalemate between you and your co-owners. The main con is the cost.

PROS

  • When co-owners cannot agree to how to manage or sell a property mediation, the partition action will get the property sold
  • Some chance of reimbursed costs associated with the property ordered by the court including attorney fees

CONS

  • Court costs and attorney fees
  • Time to get the process done can take a year or more in a litigious matter
  • Forced sales normally are for less money than if your property was sold at market rate

For instance, if someone lives in the property, negotiating when they move out or what they pay for rent is possible.  Credits for improvements can also be negotiable. Most people prefer to settle a partition action lawsuit before a judge decides it for them.

A partition action cannot be “stopped” by a party who does not wish to sell the property unless the parties can resolve the dispute. The action can be stopped when everyone agrees to the next steps.

How much does a partition action cost in New Jersey?

If both sides agree to partition a property, the costs usually will not exceed what normally is expected from the sale of any real property in New Jersey.  However, if litigations ensues the costs can range from $5,000 to $30,000 in legal fees depending on how litigious both sides become.

Let’s look at one particular litigious New Jersey Partition case: MCDERMOTT-GUBER.  After appeals, one side in the partition action BART J. MCDERMOTT, INC., Plaintiff, v. JOY MCDERMOTT-GUBER, a/k/a JOY MCDERMOTT, Defendant. DOCKET NO. A-1210-15T3 decided May 19, 2017 asked for over $200,000 in sanctions which was eventually denied on appeal. See https://www.njcourts.gov/attorneys/assets/opinions/appellate/unpublished/a1210-15.pdf

These fees requested were not typical, and sanctions are rarely awarded if one side has even the thinnest of legal theories to argue.  Sanctions are usually only awarded for frivolous conduct.

https://njlawconnect.com/wp-content/uploads/2013/04/Chedid.Brief_.12.14.12.pdf

The costs of a partition action in New Jersey may be paid from the proceeds of the sale of the property if the court agrees the lawsuit was brought in good faith. The partition action has to be shown to have benefited all of the co-tenants. The court has discretion to award fees if the partition action lawsuit can be shown not to have been for the sole purpose of advancing the interests of the co-owner filing the partition action. Since this is discretionary, it is also not guaranteed that fees will be awarded.

How do I win a New Jersey partition action?

Winning a New Jersey partition action is relative and depends on your goals. If you are trying to stop a partition action your options are limited.  Some co-owners of property want to keep the property, which may be possible at a fair market price. Parcels of land may be able to be physically partitioned which may be your goal. Physically dividing up a property is not always possible as in the case of a single-family home, a win may be when a co-owner wishes to sell the home. In other cases, you may want to taking full possession of a home/property and “buy out” your co-owners or you may want to be bought out. Each partition case is different, and we can go over your goals to see what we can achieve together.

Attorney and court fees chip away at the property’s original value to each owner. When settlement cannot be achieved costs may drive the case to trial sooner than later to avoid unnecessary delay and costs outside of the legal aspects.

How Long Does It Take to Win a New Jersey Partition Action?

To win a partition action in New Jersey it can take anywhere from a couple of months to reach a settlement agreement to a year or more if the partition action goes to a court trial.  The vast majority of New Jersey partition actions settle without a final judgment by a judge. This reduces the time frame from filing the lawsuit to resolution. Settling before trial is cheaper and faster. Before filing a partition action in New Jersey, it is important to consider the benefits, potential consequences, and likely outcome of your case

Do I need a New Jersey partition action lawyer near me?

We recommend finding an experienced New Jersey partition action attorney familiar with the county probate court in the county where the real estate property is located. For example, if the co-owner lives in New York, NY, yet the real estate property is in Jersey City, New Jersey, we recommend working with a probate lawyer in Jersey City. A Jersey City probate lawyer will generally be more familiar with the Hudson County Chancery Probate Attorney versus an out of state attorney.

How do I choose a NJ partition action attorney?

It is important to seek the advice of a qualified New Jersey real estate attorney for partition matters. Each partition action is unique. Your facts are different than anyone elses. You need a lawyer who will understand your concerns and advocate for you. Our experienced partition attorneys represent clients through all phases of partition actions in court.

If you have any questions about partitioning your property, please do not hesitate to call us.

Where can I find NJ Partition Action Forms

While partition action forms are available online, we highly recommend speaking with an experienced probate litigation attorney. Handling a residential or commercial partition is basically the same, but are you sure you have all of the people with interests in your property served?  It would really be a kick in the pants to have to start over because the IRS was served incorrectly, or services was done improperly.  No partition action is identical and if you try to use a form, you may waive your rights or defenses. Or, just miss the mark all together.  I once was a contractor lose an $83,000 claim because he did not have his contract number on his free forms for contracts he downloaded online.  NJ laws can be ridiculous at times, trying to save a dollar know can cost you the entire case because something simple was missed.  

While partition action forms are available online, we highly recommend speaking with an experienced probate litigation attorney. No partition is identical and if you try to use a form, you may waive your rights or defenses.

You can email us at info@focusedlaw.com. Your rights and privacy are 100% protected. We never share or sell your information or email. We never sell or share your information. No one wants spam email and we respect your right to privacy.  We are here to  help in all of the areas of law we practice.

Book A Free Consultation

Very pleased with the level of care and attention in dealing with this law firm. They were always quick to respond and patient with a very impatient first time home buyer! Robert Ranalli was my attorney and I would recommend for any legal needs.

Nashir M.

I had the pleasure of working with Veer Patel and staff for several months and could not have been more pleased with the attention, care, and professionalism of everyone at the firm. Really good experience and would definitely recommend!

Brian R.

Mario GarzonaMario Garzona
14:15 27 Mar 23
Thank to Patel and Cardanas. They helped us with an extreme amount of litigation with a partition real estate case. It’s allways difficult fighting with family but they navigated all the twists and turns we’re experienced and prepared to deal with it all. The outcome was better than anticipated I would use them and 100 percent recommend then. Thanks too Veer and John for the amazing work
Monica OzMonica Oz
02:29 03 Jan 23
I had a wonderful experience working with Veer Patel. He worked hard for me and got me the best possible result. His fees were reasonable and there were no surprise charges. He was also very compassionate regarding my circumstances. Mr Patel is skillful in explaining complex legal processes in layman's terms. He was always available for me night and day and would always return calls promptly. I would highly recommend him to anyone in need of legal services.
Mustafa PachaMustafa Pacha
22:06 18 Nov 22
A respectable law firm. The attorneys & staff are courteous, prompt with return calls/emails and provide me with exceptional attention. As a first time home buyer, their patience with me was exceptional. Would definitely recommend to anybody who is looking for a real estate lawyer for their next closing
Melissa DuranMelissa Duran
21:19 01 Nov 22
Veer Patel and John Voorhees helped me file a partition against my ex boyfriend in April 2022 and in Nov 2022 I am happy to say my case was settled. I am beyond grateful to have chosen them for my legal battle. They were knowledgeable of the process, hard working, dedicated, and detailed. It was great to work with a team who I knew was fighting hard for me. I 100% recommend working with this law firm and would work with them again.
DhokhadhariNala LaroDhokhadhariNala Laro
00:45 23 Sep 22
True evil exists in this world and you DON'T want to meet it. If you do meet it, you need assistance from people who can fight it, such as this law firm. Mr. Patel and his associates helped me fight evil. That is not an elementary task.I saw a very few 1-star reviews of the firm (some pretty old). As you know, some people who write reviews on Amazon or elsewhere are not reliable reviewers and you cannot take their comments seriously. You decide.Read on if you care about my story (or skip it if you are satisfied that I rated them 5 stars). You will see the depths of evil that exist and what you can do. It may be too big to tackle on your own, so you need some expert help to navigate a way out.You know true evil exists, but you don't think too much about that fact or it would paralyze you. People would rather safely view evil on a fictional crime show, confident that they will never meet it in real life. You have seen evil yourself on television, but, unlike me, you may not have met it in person.I see true evil when I turn on the television and see sworn members of the US government utter completely false statements, assertions demonstrably untrue, but which they assume I will believe. My jaw hangs open at the malevolence of such action, the blatant dishonesty, the disregard for me as a citizen, the insidious diminution of my personal rights, the insatiable hunger for power and control that it exposes.Such people do not walk around enveloped by a cloud of green smoke; you won't realize it, at first, when you have met such a person. Hannah Arendt knew that and described it as the "banality of evil."Meeting evil doesn't have to mean encountering Ted Bundy in a parking lot. Evil can do things other than kill you. They are people with no conscience. Those are the most dangerous foes because they acknowledge no limits.I met such a person and, unfortunately, conducted business with him.He lied to me repeatedly and actively worked to prevent me from finding out the truth. He nimbly worded his sentences to avoid saying the words that would clue me in to the truth. Someone else knew the truth, so he tried to prevent me from talking to her. He even, perversely, tried to verbally prod me into thanking him for his seeming generosity, all the time knowing that he was very far short of generous. He knew what he was doing and did it with the cool efficiency of a member of the Sicherheitsdienst. He has apparently made a profitable career of it.After my lawsuit was filed, he lied frequently and extensively in court filings under oath and falsified evidence to deflect blame from himself, temporarily fooling even my own lawyers. He insisted he was actually the victim and expressed phony outrage that anyone would say he had been lying.It was like seeing one of the pernicious television people I described above, but in real life.True evil. No conscience. Chilling.You should pray you do not meet such a person. You would gasp in horror if I told you from which profession he had retired.Mr. Patel and the lawyers at this firm did some adroit legal work to set things right. The firm provides service in different legal areas, but I can only comment on the case for which I hired them, which is in the litigation area.You don't go to a reconstructive plastic surgeon to put 4 stitches into a laceration your son got on his leg sliding into base in Little League. Your insurance company would tell you it is a waste to use such an expert--a resident in the ER can do it instead. Similarly, you probably don't use these lawyers for a routine house closing. That would be a waste.You use these lawyers for complicated work.Mine was a complicated case requiring legal research and artful construction of court filings and we got a good result. That is why I recommend them.
js_loader
Results may vary depending on your particular facts and legal circumstances.
The Law Offices of Patel & Cardenas

Why Choose Us?

Free Initial Consultations

Multilingual Attorneys

Thousands of Clients Served

Focus On Quality Client Care

Call us

(973) 542-9407