NY Real Prop Actions L § 993 (2021)
2021 New York Laws RPA - Real Property Actions and Proceedings Article 9 - Action for Partition 993 - Uniform Partition of Heirs Property Act.

§  993.  Uniform partition of heirs property act. 1. Short title. This section shall be known as the "uniform partition of heirs property act".   2. Definitions. For purposes of  this  section,  the  following  terms shall have the following meanings:  (a) "Ascendant" means an individual who precedes another individual in lineage, in the direct line of ascent from such other individual.  (b)  "Collateral"  means  an  individual  who  is  related  to another individual under the law of intestate succession of this state  but  who is not such other individual's ascendant or descendant.  (c) "Descendant" means an individual who follows another individual in lineage, in the direct line of descent from such other such individual.  (d)  "Determination of value" means a court order determining the fair market value of heirs property under subdivision  six  or  ten  of  this section  or  adopting  the  valuation  of  the property agreed to by all co-tenants.  (e) "Heirs property" means real property held  in  tenancy  in  common which  satisfies all of the following requirements as of the filing of a partition action:  (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; and  (iii) 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.  (f) "Partition by sale" means a court-ordered sale of the entire heirs property,  or  the  portion  thereof in which any co-tenant who acquired title from a relative resides,  whether  by  auction,  sealed  bids,  or open-market sale conducted under subdivision ten of this section.  (g)  "Partition in kind" means partition or division of heirs property into physically distinct and separately titled parcels.  (h) "Record" means information that is inscribed on a tangible  medium or that is stored in an electronic or other medium and is retrievable in perceivable form.  (i)  "Relative"  means  an  ascendant, descendant, or collateral or an individual otherwise related to another individual by  blood,  marriage, adoption, or law of this state other than under this section.   3.  Applicability;  relation to other law. (a) This section applies to partition actions filed on or after the effective date of this section.  (b) In  any  action  to  partition  real  property,  the  court  shall determine,  after  notice  and  the  right  to be heard afforded to each party, whether the property is heirs property. If the  court  determines that  the  property is heirs property, the property shall be partitioned in accordance with this section unless all of the  co-tenants  otherwise agree in a record.  (c)  This  section  shall  supplement the general partition statute of this article and, if an  action  is  governed  by  this  section,  shall replace  the  provisions  of  such  general  partition  statute that are inconsistent with this section.   4. Service; notice by posting. (a) This section  shall  not  limit  or affect  the method by which service of a complaint in a partition action may be made.  (b) If the plaintiff in a partition action seeks an order of notice by publication and the court determines that  the  property  may  be  heirs property,  the  plaintiff,  not  later  than  ten days after the court's determination, shall post and maintain while the  action  is  pending  a conspicuous  sign on the property that is the subject of the action. The sign shall state that the action has commenced and identify the name and address of the court and the common designation by which the property is known. The court may require the plaintiff to publish on  the  sign  the name of the plaintiff and the known defendants.   5.  Settlement  conference.  (a)  In  any  partition  action  of heirs property, plaintiffs shall file proof of service within twenty  days  of such  service,  however  service  is  made,  and  the court shall hold a mandatory conference within sixty days after the date when a request for judicial intervention is filed, or on such adjourned date  as  has  been agreed  to  by  the  parties,  for  the  purpose  of  holding settlement discussions pertaining to the relative rights  and  obligations  of  the parties  with respect to the subject property including, but not limited to, as set forth in this section.  (b) Upon the filing of a request for judicial intervention, the  court shall  promptly  send  a notice to parties advising them of the time and place of the settlement conference, the purpose of  the  conference  and the  requirements  of  this  section.  The  notice  shall  be  in a form prescribed by the office of court administration, or, at the  discretion of  the  office of court administration, the administrative judge of the judicial district in which the action is pending. Plaintiff shall post a copy of the settlement conference notice in a conspicuous place  on  the property within twenty days of the date of the notice.  (c) The settlement conference may be adjourned or reconvened from time to  time  as appropriate during the pendency of the partition action. At any conference held pursuant to this section,  the  plaintiffs  and  the defendants  shall  appear  in  person  or  by  counsel, and each party's representative at the conference shall be fully authorized to dispose of the entirety or any portion of the case. If the defendant  is  appearing pro se, the court shall advise the defendant of the nature of the action and his or her rights and responsibilities as a defendant.  (d)  At the first settlement conference held pursuant to this section, if the defendant has not filed an answer or made a pre-answer motion  to dismiss,  the court shall (i) advise the defendant of the requirement to answer the  complaint,  (ii)  explain  what  is  required  to  answer  a complaint  in  court,  (iii)  advise  that  the  ability  to contest the partition action and assert defenses may be lost if  an  answer  is  not interposed,  (iv) set a deadline for any co-tenants requesting partition by sale, and (v) provide information about available resources for legal assistance. A defendant who appears at the settlement conference but who failed to file a timely answer, pursuant to rule three hundred twenty of the civil practice law and rules, shall be presumed to have a reasonable excuse for the default and shall be  permitted  to  serve  and  file  an answer,  without  any  substantive  defenses deemed to have been waived, within thirty days of initial appearance at the  settlement  conference. The  default  shall  be  deemed  vacated  upon  service and filing of an answer.  (e) Both the plaintiffs and defendants shall negotiate in  good  faith to  reach a mutually agreeable resolution including, but not limited to, a tenancy in common agreement, a co-tenant buyout  and  the  allocation, mechanics and financing thereof as provided in subdivision seven of this section,  a partition in kind as provided in subdivisions eight and nine of this section, an open market sale as provided in subdivision  ten  of this section, or any other agreement or loss mitigation that is fair and  reasonable  considering  the totality of factors listed in paragraph (a) of subdivision nine of this section.  (f)  If  the parties do not reach a mutually agreeable resolution, the referee, judicial hearing officer, or  other  staff  designated  by  the court  to  oversee the settlement conference process shall make a report of findings of fact, conclusions of law and recommendations  for  relief to  the  court concerning any party's failure to negotiate in good faith pursuant to paragraph (e) of this subdivision. If the court determines a plaintiff has failed to negotiate in good faith,  the  partition  action shall be dismissed.  (g)  Any  motions  submitted by any party to the action may be held in abeyance while the settlement conference process is ongoing, except  for motions  concerning  (i) a determination of the percentage interests, if any, owned by any alleged co-tenant if such interests are in dispute and (ii) compliance with this rule  and  its  implementing  rules  including applications  to  extend in the interests of justice any deadlines fixed herein.  (h) In addition to any other qualifications otherwise  required,  each commissioner  appointed  under  section  nine  hundred  fifteen  of this article  and  any  officer  appointed  to  conduct  a  sale   shall   be disinterested, impartial and not related to a party to or participant in the action.   6.  Determination  of  value.  (a)  If  the  court determines that the property that is the subject of a partition action  is  heirs  property, the  court  shall  determine the fair market value of the heirs property for purposes of subdivision seven of this section as follows,  utilizing paragraph  (d)  of  this  subdivision,  unless  it  has  determined that paragraph (b) or (c) of this subdivision apply.  (b) If all co-tenants have agreed to the value of the property  or  to another  method  of  valuation,  the court shall adopt such value or the value produced by the agreed method of valuation.  (c) If the court determines that the evidentiary value of an appraisal is outweighed by  the  cost  of  the  appraisal,  the  court,  after  an evidentiary  hearing,  shall  determine  the  fair  market  value of the property and send notice of the value to the parties.  (d) If paragraph (b) or (c) of this  subdivision  do  not  apply,  the court  shall order an appraisal by a disinterested real estate appraiser licensed in this state  to  determine  the  fair  market  value  of  the property.  Any  determination  of value under paragraph (c), (d), (f) or (g) of this subdivision shall assume sole ownership of  the  fee  simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.  (e)  Not  later  than  ten  days  after  an  appraisal  is filed under paragraph (d) of this subdivision, the court shall send notice  to  each party with a known address, stating:  (i)  the  appraised fair market value of the property plus the allowed cost of the appraisal;  (ii) that the appraisal is available at the clerk's office; and  (iii) that a party may  file  with  the  court  an  objection  to  the appraisal  not  later than thirty days after the notice is sent, stating the grounds for the objection.  (f) If an appraisal is filed with the court pursuant to paragraph  (d) of  this subdivision, the court shall conduct a hearing to determine the fair market value of the property not sooner than thirty  days  after  a copy  of  the  notice  of  the  appraisal  is  sent  to each party under paragraph (e) of this subdivision, whether or not an  objection  to  the appraisal  is  filed  under  subparagraph (iii) of paragraph (e) of this  subdivision. In addition to the court-ordered appraisal, the  court  may consider any other evidence of value offered by a party.  (g)  After  a  hearing  under  paragraph  (f) of this subdivision, but before considering the merits of the partition action, the  court  shall determine  the  fair market value of the property and send notice to the parties of the value.   7. Co-tenant buyout. (a) Every  co-tenant  who  requests  or  joins  a request  for partition of heirs property by sale has thereby agreed that his or her interest may be acquired in accordance herewith at the  value determined  under  subdivision six of this section by the co-tenants who have not sought or joined in the request for  partition  by  sale.  Upon determination  that  the  property  is  heirs  property and prior to the determination of value under subdivision six of this section, the  court shall  send  notice  to  all parties identifying the owners of interests that have sought partition by sale, the percentage interests such owners allege to hold and of the right of the  remaining  co-tenants  to  avert partition  by  sale  by  exercising  the  right  to  purchase all of the interests of the co-tenants who requested partition by sale.  (b)  Not  later  than  forty-five  days  after  the  notice   of   the determination of value under subdivision six of this section is sent and by  the date specified in such notice, any co-tenant, except a co-tenant that requested partition by sale, may give notice to the  court  of  the total  amount of percentage interests subject to purchase that he or she elects to buy; provided, however, the court shall make  a  determination of  each co-tenant's percentage ownership interest in the property prior to sending notice of the determination of value if such interest  is  in dispute  and  shall  consider  all  facts as determined by the court and presented by the parties,  and  all  laws  and  rules  that  govern  the transfer, succession and acquisition of title through probate, intestacy or otherwise.  (c)  The purchase price for percentage interests shall be the value of the entire parcel determined  under  subdivision  six  of  this  section multiplied  by  the aggregate amount of the percentage interests subject to purchase.  (d)  After  expiration  of  the  period  in  paragraph  (b)  of   this subdivision, the following rules apply:  (i)  If one or more co-tenants have elected in the aggregate to buy at least the total amount of percentage interests subject to purchase,  the court shall notify all the parties of such fact.  (ii)  If the electing co-tenants' offers equal or exceed the amount of percentage interests subject to purchase, the court shall  allocate  the right to buy those interests among the electing co-tenants based on each electing  co-tenant's existing fractional ownership of the entire parcel divided by the total existing fractional  ownership  of  all  co-tenants electing  to  buy, reserving priority, first, to electing co-tenants who acquired the interest from a relative and reside in  the  property  and, second,  to  all  other  electing co-tenants who acquired their interest from a relative, and send notice to all the parties of the foregoing and of the price to be paid by each electing co-tenant.  (iii) If co-tenants with the right to elect fail to elect to  purchase the  entirety  of  the  interests  of the co-tenants whose interests are subject to purchase, the court shall send notice to all the  parties  of such  fact and resolve the partition action under paragraphs (a) and (b) of subdivision eight of this section.  (e) If the court sends notice to the parties under subparagraph (i) or (ii) of paragraph (d) of this subdivision, the court shall set  a  date, not  sooner than sixty days after the date the notice was sent, by which  electing co-tenants must pay their apportioned  price  into  the  court. After this date, the following rules apply:  (i) If all electing co-tenants timely pay his or her apportioned price to  the  court,  the  court  shall  issue  an order reallocating all the interests of the co-tenants and disburse the amounts held by  the  court to the persons entitled to them.  (ii)  If  no  electing  co-tenant  timely  pays his or her apportioned price, the court shall resolve the partition action under paragraphs (a) and (b) of subdivision eight of this section as if the interests of  the co-tenants that requested partition by sale were not purchased.  (iii)  If one or more, but not all, of the electing co-tenants fail to pay their apportioned price on time, the court, on  motion,  shall  give notice  to  the electing co-tenants that paid their apportioned price of percentage of the unpurchased interests remaining and the price for  all such interests.  (f)  Not  later than twenty days after the court gives notice pursuant to  subparagraph  (iii)  of  paragraph  (e)  of  this  subdivision,  any co-tenant  that  paid his or her apportioned price may elect to purchase all of the remaining interest by paying the entire price to  the  court. After the twenty day period, the following rules shall apply:  (i)  If  only  one  co-tenant  pays the entire price for the remaining interest, the court shall issue  an  order  reallocating  the  remaining interest  to  such  co-tenant.  The  court shall issue promptly an order reallocating the interests of all of the  co-tenants  and  disburse  the amounts held by the court to the persons entitled to such amounts.  (ii) If no co-tenant pays the entire price for the remaining interest, the  court  shall  resolve the partition action under paragraphs (a) and (b) of subdivision eight of this section as  if  the  interests  of  the co-tenants that requested partition by sale were not purchased.  (iii)  If  more  than  one  co-tenant  pays  the  entire price for the remaining  interest,  the  court  shall  reapportion   those   remaining interests   among   those   paying  co-tenants,  based  on  each  paying co-tenant's original fractional ownership of the entire  parcel  divided by  the  total original fractional ownership of all co-tenants that paid the entire price for the  remaining  interest.  The  court  shall  issue promptly  an  order  reallocating  all  of  the  co-tenants'  interests, disburse the amounts held by the court to the persons entitled  to  such amounts, and promptly refund any excess payment held by the court.  (g) Not later than forty-five days after the court sends notice to the parties  pursuant  to  paragraph  (a) of this subdivision, any co-tenant entitled to buy an interest under this subdivision may request the court to authorize the sale as part of the pending action of the interests  of co-tenants  named  as  defendants and served with the complaint but that did not appear in the action.  (h) If the court receives a timely request under paragraph (g) of this subdivision, the court,  after  a  hearing,  may  deny  the  request  or authorize  the  requested  additional  sale  on  such terms as the court determines  are  fair  and  reasonable,   subject   to   the   following limitations:  (i)  a sale authorized under this subdivision may occur only after the purchase prices for all interests subject to sale under paragraphs  (a), (b),  (c),  (d),  (e)  and (f) of this subdivision have been paid to the court and such interests have been reallocated among the  co-tenants  as provided in such paragraphs; and  (ii)  the purchase price for the interest of a non-appearing co-tenant is based on the court's determination of value under subdivision six  of this section.    8.  Partition alternatives. (a) If all the interests of all co-tenants that requested partition by sale are not purchased by  other  co-tenants pursuant to subdivision seven of this section, or if after conclusion of the  buyout under subdivision seven of this section, a co-tenant remains that has requested partition in kind, the court shall order partition in kind  unless  the  court,  after  consideration of the factors listed in subdivision nine of this section, finds  that  partition  in  kind  will result  in  great  manifest  prejudice  to the co-tenants as a group. In considering whether to order partition in kind, the court shall  approve a  request  by  two  or  more parties to have their individual interests aggregated.  (b) If the court does not order partition in kind under paragraph  (a) of this subdivision, the court shall order partition by sale pursuant to subdivision  ten  of  this section provided that, if no co-tenant timely requested partition by sale, the court shall dismiss the action.  (c) If the court orders partition in kind pursuant to paragraph (a) of this subdivision, the court may require that one or more co-tenants  pay one  or  more  other  co-tenants  amounts  so  that  the payments, taken together with the value of the in kind distributions to the  co-tenants, will  make  the partition in kind just and proportionate in value to the fractional interests held.  (d) If the court orders partition in kind, the court shall allocate to the co-tenants that are unknown, cannot be located, or the subject of  a default  judgment,  if  the  co-tenants  interests  were  not bought out pursuant to subdivision seven of this section, a part  of  the  property representing  the combined interests of such co-tenants as determined by the court and such part of the property shall remain undivided.   9. Considerations for partition in  kind.  (a)  In  determining  under subdivision eight of this section whether partition in kind would result in  great  manifest  prejudice  to  the co-tenants as a group, the court shall consider the following:  (i) whether the heirs property practicably can be  divided  among  the co-tenants;  (ii)  whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels  resulting  from the  division  would  be  materially  less  than  the  amount reasonably expected to be realized if the property were sold  as  a  whole,  taking into  account  the  conditions  under  which a court-ordered sale likely would occur;  (iii) evidence of the collective duration of ownership  or  possession of  the property by a co-tenant and one or more predecessors in title or predecessors in possession to the co-tenant who are or were relatives of the co-tenant or each other;  (iv) a co-tenant's sentimental attachment to the  property,  including any  attachment  arising  because  the  property  has ancestral or other unique or special value to the co-tenant;  (v) the lawful use being made of the property by a resident  or  other co-tenant  and the degree to which any such co-tenant would be harmed if the co-tenant could not continue the same use of the property;  (vi) the degree to which the co-tenants  have  contributed  their  pro rata  share  of  the  property  taxes,  insurance,  and  other  expenses associated  with  maintaining  ownership  of  the   property   or   have contributed  to  the physical improvement, maintenance, or upkeep of the property;  (vii) the price, terms  and  conditions  of  the  acquisition  of  the co-tenant's interest in the property if such co-tenant is not a relative of the person from whom it acquired his or her interest; and  (viii) any other relevant factor.  (b)  The  court  shall not consider any one factor in paragraph (a) of this subdivision to be dispositive without weighing the totality of  all relevant factors and circumstances.   10. Open-market sale, sealed bids, or auction. (a) If the court orders a sale of heirs property, notwithstanding section two hundred thirty-one of  this  chapter,  such  sale  shall  be an open-market sale under this subdivision unless the court finds that a sale  by  sealed  bids  or  an auction would be more economically advantageous and in the best interest of the co-tenants as a group.  (b) If the court orders an open-market sale and the parties, not later than  ten  days  after  the  entry  of the order, agree on a real estate broker licensed in this state to offer the property for sale, the  court shall  appoint  the broker and establish a reasonable commission. If the parties  do  not  agree  on  a  broker,  the  court  shall   appoint   a disinterested  real  estate  broker  licensed in this state to offer the property for sale and  shall  establish  a  reasonable  commission.  The broker  shall  offer  the property for sale in a commercially reasonable manner at a price no lower than the determination of value  and  on  the terms and conditions established by the court.  (c)  If  the  broker appointed under paragraph (b) of this subdivision obtains within a reasonable time an offer to purchase the  property  for at least the determination of value:  (i)  the  broker  shall  comply  with  the  reporting  requirements in subdivision eleven of this section; and  (ii) the sale may be completed in accordance with  the  laws  of  this state other than this section.  (d)  If  the  broker appointed under paragraph (b) of this subdivision does not obtain within a  reasonable  time  an  offer  to  purchase  the property  for  at  least  the determination of value, the court, after a hearing, may:  (i) order that the property continue to be offered for  an  additional time,  by  the same or a substitute broker, in accordance with paragraph (b) of this subdivision; or  (ii) if it determines that doing so would not be in the best interests of the parties, approve the highest outstanding offer.  (e) If after the court has appointed a substitute broker and there are no reasonable offers for the property, the court may order the  property be  sold by sealed bids or an auction and, the court shall set terms and conditions of the sale. If the court  orders  an  auction,  the  auction shall  be conducted in accordance with section two hundred thirty-one of this chapter.  (f) If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the  price  in  an  amount equal to the purchaser's share of the net proceeds.   11.  Report of open-market sale. (a) Unless required to do so within a shorter time by this article, a broker appointed under paragraph (b)  of subdivision  ten of this section to offer heirs property for open-market sale shall file a report with the court not later than seven days  after receiving  an  offer  to  purchase  the  property for at least the value determined under subdivision six or ten of this section.  (b) The report required by paragraph (a)  of  this  subdivision  shall contain the following information:  (i) a description of the property to be sold to each buyer;  (ii) the name of each buyer;  (iii) the proposed purchase price;  (iv)  the  terms  and  conditions  of the proposed sale, including the terms of any owner financing;  (v) the amounts to be paid to lienholders;  (vi) a statement of contractual or other arrangements or conditions of the broker's commission; and  (vii) other material facts relevant to the sale.