Yes, New Jersey property law allows for the partition of the property, or if a partition is not feasible, then the forced sale of real estate which is owned by more than one person.
Often real estate is owned by several people. This commonly occurs through an inheritance. For example, parents, in their last wills and testaments, bequeath their real property to their three children in equal shares and do not include directives that the property be sold and the proceeds be split equally. During the administration of the estate, the executor transfers title to the property to the three siblings. Often, one of the siblings had been caring for the now deceased parents and is still residing in the property. Yet, the other two siblings want the property to be sold so that they can have their share of the proceeds. This can be a difficult time and can result in significant disputes and turmoil within the family. If the child residing in the property cannot afford to buy out the remaining siblings and cannot (or will not) qualify for a mortgage, the remaining siblings are often at a loss on how to proceed. New Jersey Estate law provides a mechanism to resolve the dispute, the partition action.
If a co-owner of real property refuses to sell the property and divide the proceeds of sale in accordance with each co-owners’ ownership interests, a partition action is the only method available to a person who owns a share of real estate as a tenant in common or joint tenant can separate his or her interest from the other co-owners. If the joint tenants are spouses this remedy is not available to them.) In order to start an action for partition, an action must be filed in the Superior Court of New Jersey, usually filed in the county where the property is located.
Of course, it is always preferable to enter into an agreement between the parties to resolve this problem. Possible resolutions include one owner buying out the other owners either through a third party lender (i.e. a bank or financing the sale with a seller’s note with payments directly from the buyer to the seller over a number of years – either of these options should be secured with a recorded mortgage on the property. Another solution is one owner renting the property at the prevailing market rate with monthly payments to the non-resident owners. The parties can also decide on any other creative solution which will be agreeable.
If the various owners are unable to come to an agreement, those owners who want to sell can file an action for partition. In an action in partition, the Court has the authority to actually physically divide the property and distribute a portion to each co-owner. However, that is an unusual outcome and typically applies only to vacant land. As a practical matter, it is often not possible to divide a house equally among several owners. In the event it is possible and the court orders a physical division of the property, the Court usually appoints a commissioner to oversee the division of the property.
As physically dividing the land is often not an available remedy due to the configuration or size of the property and structures on it, the Court may and often does order the property to be sold and then the proceeds of the sale to be split among the co-owners. The Court is authorized by New Jersey Estate law to direct a sale of property if it appears that a partition of the property cannot be made without great prejudice to the owners, or persons interested in the property. When calculating the distribution of the proceeds. The court will consider adjustments or credits between the various parties to account for payments made by specific owners for maintenance, taxes, repairs, insurance and the like.
However, the best course of action is to come up with a plan that all co-owners of the property can agree to.
Our New Jersey Estate attorneys can assist with negotiations between the owners and if needed bringing a partition action. Contact our office at (973) 890-0004 or e-mail us to schedule a consultation with one of our estate attorneys.