ON PARTITIONS AND HEIRS PROPERTY

 

ANTIOCO v. ANTIOCO, 2022 NY Slip Op 34420 - NY: Supreme Court 2022:

"nder RPAPL § 901, where there is no agreement preventing partition and a court has not made a determination as to use or possession of real property, "[a] person holding and in possession of real property as [a] joint tenant or tenant in common ... may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners" (see RPAPL § 901[1]; Ehrgott v Buzerak, 49 AD3d 681 [2d Dept 2008]; McNally v McNally, 129 AD2d 686 [2d Dept 1987]). However, the right to partition is not absolute, the court must weigh the equities between the parties before determining whether partition is appropriate (see Graffeo v Paciello, 46 AD3d 613 [2d Dept 2007]; Bufogle v Greek, 152 AD2d 527 [2d Dept 1989]). Furthermore, actual possession is not a prerequisite to a partition action, constructive possession, which follows title, is sufficient (see Garland v Raunheim, 29 AD2d 383 [1st Dept 1968]; Deegan v Deegan, 247 AD 340 [2d Dept 1936]; Bender v Terwilliger, 48 AD 371 [3d Dept 1900], affd 166 NY 590 [1901]; Diamond v Schwartz, 26 Misc 3d 1202(A) Sup Ct, NY County 2009, Tolub, J.).

Here, the court finds that plaintiff has sufficiently demonstrated the absence of any triable issues of fact regarding his ownership and right to possession of the Property, which is the prima facie showing needed to demonstrate a viable partition action under RPAPL § 901 (see RPAPL § 901[1]; Dalmacy v Joseph, 297 AD2d 329 [2d Dept 2002]). PSA has also established that the Property is "heirs property" under RPAPL § 993(2)(e), in that it meets all the requirements for "heirs property" as set forth in that provision, which plaintiff does not refute. The Act, which became effective on December 6, 2019, defines "heirs property" as

"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" (RPAPL § 993[2][e]).

Here, as PSA argues, the Property meets the definition of "heirs property" under RPAPL § 993(2)(e), in that there is no agreement between the co-tenants regarding partition of the Property; at least one of the co-tenants obtained their respective interests in the Property from a relative (EA); more than 20% of the interest in the Property is held by co-tenants who are relatives; and PSA, who acquired title from EA, resides in the Property (see RPAPL § 993[2][e]).

As the court has determined that the Property is "heirs property," in accordance with RPAPL § 993(3)(b) and (c),

(b) ... the property shall be partitioned in accordance with this section unless all of the co-tenants otherwise agree in a record, otherwise, it is understood

(c) ... that Section 993 supplements the general partition statute (RPAPL § 901) but replaces the provisions of RPAPL 901 that are inconsistent with this section."

Accordingly, RPAPL § 993 is controlling herein. Therefore, plaintiff's request for summary judgment is premature pursuant to RPAPL § 993(5), which mandates that a settlement conference be held prior to determination of a summary judgment motion (see RPAPL §§ 993(5)(a), (b) and (g). Further, all parties must be provided with notice, pursuant to RPAPL § 993(7)(a), stating that plaintiff, as owner of an undivided one-half (50%) interest in the Property, has sought a partition by sale of the Property, and that PSA, PA and WA, as co-tenants, have the right to avert the partition by purchasing all interest held by plaintiff; and a settlement conference must be held relative to the interests, rights and obligations of the parties regarding the Property, pursuant to RPAPL § 993(5). Thus, the court finds that plaintiff's motion is subject to denial with leave to renew in the event this action is not finally resolved during the settlement conference process (see RPAPL § 993[8])."