Partition Action Complaint - New York

VERIFIED COMPLAINT FOR PARTITION AND SALE OF REAL PROPERTY

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF [____________________]

VERIFIED COMPLAINT

Plaintiff [PLAINTIFF NAME], by [his/her/its] attorneys, [FIRM NAME], as and for this Verified Complaint for partition under Article 9 of the Real Property Actions and Proceedings Law (and, where applicable, RPAPL § 993, the Uniform Partition of Heirs Property Act), alleges as follows:

I. PARTIES, JURISDICTION, AND VENUE

1. Plaintiff [PLAINTIFF NAME] is [an individual residing at / an entity with its principal place of business at] [________________________________], and is a co-owner of the real property described below.

2. Defendant [COTENANT NAME] is, upon information and belief, [an individual residing at / an entity located at] [________________________________], and is a co-owner of the Subject Property.

3. The following persons are joined as Defendants as necessary or permissible parties under RPAPL §§ 903 and 904 because each is a joint tenant, tenant in common, or person with an interest, lien, or possessory interest in the Subject Property:

☐ [COTENANT/PARTY NAME] — [interest: ____________]
☐ [COTENANT/PARTY NAME] — [interest: ____________]
☐ Holder(s) of any mortgage, judgment, or other lien of record: [____________]
☐ [Tenant(s) / lessee(s) in possession]: [____________]

4. The "JOHN DOE" / "JANE DOE" Defendants are the unknown heirs, distributees, successors, assigns, and spouses of [____________], and all unknown persons claiming any right, title, or interest in the Subject Property, who may be served as permitted by the CPLR and RPAPL §§ 911 and 991.

5. This Court has jurisdiction over this partition action under RPAPL § 901, which provides that a person holding and in possession of real property as a joint tenant or tenant in common, in which the person has an estate of inheritance, for life, or for years, may maintain an action for partition and, where appropriate, for a sale.

6. Venue is proper in this County under CPLR § 507 because the Subject Property is located in this County.

II. THE SUBJECT PROPERTY

7. The real property that is the subject of this action (the "Subject Property") is located at [________________________________], County of [____________], State of New York, and is more particularly described as:

[INSERT FULL LEGAL DESCRIPTION]

Section [____], Block [____], Lot [____] (Tax Map / SBL No.)
Recording Reference: [Deed / CRFN / Liber-Page] [____________], [____________] County [Clerk / City Register]
Commonly Known As: [________________________________]

III. THE COTENANCY AND RESPECTIVE INTERESTS

8. The Subject Property is owned by the parties as [☐ tenants in common / ☐ joint tenants], with respective undivided interests as follows:

9. Plaintiff acquired [his/her/its] undivided interest by:

☐ Deed dated [__/__/____], recorded [__/__/____] as [CRFN / Liber-Page] [____________].
☐ Devise under the Will of [____________] (Surrogate's Court, [____________] County, File No. [____________]).
☐ Intestate distribution from [____________], who died [__/__/____].
☐ Other: [________________________________].

10. No written agreement binding all of the co-owners governs or restricts partition of the Subject Property, and no partition has heretofore been had.

IV. ENTITLEMENT TO PARTITION

11. As a co-owner in possession (or constructively in possession through the right of a cotenant to possession) of the Subject Property, Plaintiff is entitled under RPAPL § 901 to maintain this action for partition and, if actual partition cannot be made without great prejudice, for a sale of the Subject Property and division of the proceeds.

12. The co-owners cannot agree upon the use, management, or disposition of the Subject Property, and Plaintiff is entitled to have [his/her/its] interest severed by partition or, if necessary, by sale.

V. HEIRS PROPERTY DETERMINATION (RPAPL § 993)

13. RPAPL § 993 applies to partition actions filed on or after December 6, 2019. The Court must determine, after notice and the right to be heard, whether the Subject Property is "heirs property" as defined in RPAPL § 993(2)(e). Plaintiff alleges (check the applicable allegation):

☐ The Subject Property is heirs property because it is held in tenancy in common and, as of filing: (i) there is no record agreement binding all co-tenants governing partition; (ii) one or more co-tenants acquired title from a relative; (iii) the property is used for residential or agricultural purposes; and (iv) one of the thresholds of RPAPL § 993(2)(e)(iv) is met (20% or more of interests held by relatives; 20% or more held by an individual who acquired title from a relative; 20% or more of the co-tenants are relatives; or a co-tenant who acquired title from a relative resides in the property). If the Court so finds, partition shall proceed under RPAPL § 993 unless all co-tenants otherwise agree in a record — including a mandatory settlement conference (RPAPL § 993(5)), a court determination of value/appraisal (RPAPL § 993(6)), a cotenant buyout at the determined value (RPAPL § 993(7)), and, if a sale is required, a preference for an open-market sale (RPAPL § 993(10)).

☐ The Subject Property is not heirs property, and partition is governed by the general partition provisions of RPAPL Article 9.

14. If Plaintiff seeks an order of notice by publication and the Court determines the Subject Property may be heirs property, Plaintiff will, within ten (10) days, post and maintain a conspicuous sign on the Subject Property as required by RPAPL § 993(4).

VI. METHOD OF PARTITION — IN KIND OR BY SALE

15. Partition in kind. Plaintiff requests that, if the Subject Property is so circumstanced that actual partition can be made without great prejudice to the owners, the Court enter an interlocutory judgment directing actual partition under RPAPL §§ 915, 917, and 921, appointing a referee/commissioners to make the division and report.

16. Partition by sale. In the alternative, Plaintiff alleges that the Subject Property is so circumstanced that actual partition cannot be made without great prejudice to the owners, and requests that the Court direct a sale under RPAPL § 918 and a disposition of the net proceeds under RPAPL § 961 according to the respective interests of the parties, subject to the accounting below.

☐ Actual partition cannot be made without great prejudice because: [single residential structure / improved urban lot / indivisible improvements / disproportionate values / other: ____________].

VII. ACCOUNTING; RENTS AND PROFITS; OWELTY

17. Plaintiff requests that the Court, pursuant to RPAPL §§ 943 and 945 (and its equitable powers), take an accounting among the co-owners and adjust their respective shares or direct compensation as follows:

18. ☐ One or more co-owners has been in sole possession of the Subject Property and [☐ has excluded Plaintiff (ouster) / ☐ has collected rents from third parties], warranting an offset or charge against that co-owner's share under RPAPL § 945.

VIII. NOTICE OF PENDENCY

19. Contemporaneously with the filing of this Complaint, Plaintiff files a Notice of Pendency against the Subject Property pursuant to CPLR § 6501 et seq., this being an action in which the judgment demanded would affect the title to, or the possession, use, or enjoyment of, the Subject Property.

IX. PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment:

A. Adjudging and determining the respective rights, shares, and interests of the parties in the Subject Property (RPAPL § 907);

B. Determining under RPAPL § 993 whether the Subject Property is heirs property and, if so, directing that partition proceed under RPAPL § 993;

C. Directing actual partition of the Subject Property among the parties according to their respective interests if it can be made without great prejudice to the owners (RPAPL §§ 915, 917, 921);

D. Alternatively, if actual partition cannot be made without great prejudice to the owners, directing a sale of the Subject Property (RPAPL § 918) and a disposition of the net proceeds among the parties according to their respective interests (RPAPL § 961);

E. Directing an accounting among the co-owners and adjusting the shares or directing compensation for contributions, rents and profits, ouster, waste, improvements, and owelty (RPAPL §§ 943, 945);

F. Awarding the costs and expenses of this action, including reasonable attorneys' fees and the costs of any referee, commissioners, and appraisal, to be apportioned among the parties and paid out of the property or proceeds as the Court directs (RPAPL § 981); and

G. Granting such other and further relief as the Court deems just and proper.

Dated: [____________], New York
       [__/__/____]

_________________________________
[ATTORNEY NAME]
[FIRM NAME]
Attorneys for Plaintiff
[ADDRESS]
[CITY, STATE, ZIP]
Telephone: [____________]
Email: [____________]

VERIFICATION

STATE OF NEW YORK )
                ) ss.
COUNTY OF [____________] )

[PLAINTIFF NAME], being duly sworn, deposes and says: that [he/she] is the Plaintiff in the within action; that [he/she] has read the foregoing Verified Complaint and knows the contents thereof; and that the same is true to [his/her] own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters [he/she] believes them to be true.

_________________________________
[PLAINTIFF NAME]

Sworn to before me this [____] day of [____________], 20[____].

_________________________________
Notary Public
My commission expires: [__/__/____]

[NOTARY SEAL]

NOTICE OF PENDENCY

CPLR Article 65 (§ 6501 et seq.)

NOTICE IS HEREBY GIVEN that the above-captioned action has been commenced and is pending in the Supreme Court, County of [____________], State of New York, Index No. [____________], and that the judgment demanded would affect the title to, or the possession, use, or enjoyment of, the following described real property:

[INSERT FULL LEGAL DESCRIPTION]

Section [____], Block [____], Lot [____]
Common Address: [________________________________]

The object of the action is the partition of the above-described real property among its co-owners, by actual partition or by sale and distribution of the net proceeds, together with an accounting and related relief.

Dated: [__/__/____]

_________________________________
[ATTORNEY NAME], Attorneys for Plaintiff

FILE WITH THE [____________] COUNTY CLERK / CITY REGISTER. Service of the summons must be completed within thirty (30) days after filing (CPLR § 6512).

SOURCES AND REFERENCES

• RPAPL § 901 (by whom maintainable); § 903 (necessary defendants); § 904 (permissible defendants); § 905 (complaint)
• RPAPL § 907 (trial of title); § 911 (rights of unknown/absentee parties); § 915 (interlocutory judgment); § 917 (partition in common); § 918 (sale); § 921 (actual partition)
• RPAPL § 943 (compensation to equalize partition / owelty); § 945 (adjusting rents and profits)
• RPAPL § 961 (disposition of proceeds of sale); § 981 (costs and expenses); §§ 991-992 (share of unknown heirs)
• RPAPL § 993 (Uniform Partition of Heirs Property Act; eff. Dec. 6, 2019)
• CPLR §§ 6501-6515 (Notice of Pendency); CPLR § 507 (venue); CPLR § 308 (service)
• 2nd Ave Holding 1 LLC v. Lowenbraun, 2021 N.Y. Slip Op. 31276(U) (Sup. Ct., N.Y. County) (early application of RPAPL § 993)

DISCLAIMER: This template is provided for informational purposes only and does not constitute legal advice or create an attorney-client relationship. RPAPL § 993 imposes mandatory heirs-property procedures for qualifying tenancy-in-common property in actions filed on or after December 6, 2019. Independently verify all citations against the current RPAPL and CPLR. Consult a licensed New York attorney before filing.