2023 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;
(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.
(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.
* 12.  Prohibition  on  initiation of a partition action. No partition
action related to an heirs property may be initiated  by  a  party  that
purchased  or  otherwise  acquired  their share or shares by means other
than inheritance, and who did not inherit their share or shares directly
from a person who was a co-tenant prior to the property  becoming  heirs
property or from a co-tenant who was an heir thereto.
* NB Effective July 19, 2024
* 13.  Right  of  first  refusal. (a) When a co-tenant receives a bona
fide offer from a non-co-tenant to purchase a  share  or  shares  of  an
heirs  property  and  the  co-tenant intends to accept or respond with a
counteroffer, the co-tenants who inherited their share or shares of  the
property,  or  the  co-tenants who are relatives to those co-tenants who
inherited their share or shares of the property shall have the right  to
purchase  such  shares for the identical price, terms, and conditions of
the offer or counteroffer, with first  priority  to  any  co-tenant  who
occupies  the property as their primary residence and second priority to
any co-tenant who otherwise utilizes the property.
(b) It shall be the duty of the non-co-tenant  who  made  the  initial
offer  for  the share or shares of the property as well as the co-tenant
who received the offer to exercise all due diligence to identify all  of
the  other  co-tenants to the property and notify such co-tenants of the
pending offer. Such notice shall include  the  names,  addresses,  phone
numbers  and  electronic  mail addresses of all of the other co-tenants.
Notice shall be made in the same manner as set forth  in  section  three
hundred  eight of the civil practice law and rules. The other co-tenants
shall have one hundred eighty days from the date they  are  notified  of
the offer to match such offer.
(c)  In  the  event  that the other co-tenants are not notified of the
offer and the sale is completed, and the offeror did  not  exercise  the
required  due  diligence  to  notify  the  other co-tenants of the heirs
property, the other co-tenants shall have  the  right  to  purchase  the
shares  from  the  non-relative  co-tenant  for  the  price paid by such
non-relative co-tenant, plus any applicable interest at a  rate  of  two
percent per annum. Such right shall expire one hundred eighty days after
the other co-tenants to the heirs property are made aware of the sale.
* NB Effective July 19, 2024