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])."

ON PARTITIONS AND CONSTRUCTIVE TRUSTS

Parker v. Parker, 2021 NY Slip Op 50489 - NY: Appellate Term, 2nd Dept. May 21, 2021:

"Plaintiff commenced this action in Supreme Court, Kings County, in October 2014 against her sister for partition of a multi-family building in Brooklyn, for which the deed listed them as joint tenants. Defendant's answer asserted as an affirmative defense that, based on the doctrine of constructive trust, plaintiff has no interest in the subject property and interposed a counterclaim for the imposition of a constructive trust upon the subject property. In January 2019, the action was transferred to the Civil Court, Kings County, pursuant to CPLR 325(d). After a nonjury trial, at which it was uncontested that the deed for the subject building was in the names of both parties as joint tenants and that the mortgage was co-signed by plaintiff and defendant, the Civil Court found that defendant is, in effect, the sole owner of the subject property, granted defendant's counterclaim to "impose[] a constructive trust" on behalf of defendant, directed that the "current" deed be stricken and a "new" one "perfect[ed]" in the name of defendant, Renee D. Parker, "solely and exclusively," and dismissed the complaint.

The Civil Court is a court of limited jurisdiction, possessing only that subject matter jurisdiction as is provided by law (see NY Const, art VI, § 15; Green v Lakeside Manor Home for Adults, Inc., 30 Misc 3d 16 [App Term, 2d Dept, 2d, 11th and 13th Jud Dists 2010]). An order "transferring down" an action from Supreme Court to Civil Court pursuant to CPLR 325(d) does not confer subject matter jurisdiction on the Civil Court (see Priel v Linarello, 7 Misc 3d 64, 66 [App Term, 2d Dept, 2d & 11th Jud Dists 2005], affd 44 AD3d 835 [2007]) other than permitting a monetary award greater than the limit set by the New York City Civil Court Act (see CCA 202; Green v Lakeside Manor Home for Adults, Inc., 30 Misc 3d at 18). This court's authority is merely to rule on the validity of the Civil Court's amended final judgment, not to reverse the Supreme Court's CPLR 325(d) transfer order in the event the Civil Court lacks subject matter jurisdiction to grant the relief sought (see Green v Lakeside Manor Home for Adults, Inc., 30 Misc 3d at 18; Rivera v Buck, 25 Misc 3d 27 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Briscoe v White, 8 Misc 3d 1 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]; Priel v Linarello, 7 Misc 3d 64; but see Kaminsky v Connolly, 73 Misc 2d 789 [App Term, 1st Dept 1972]).

Here, plaintiff seeks a partition of the subject property. Pursuant to CCA 203(a), the Civil Court has jurisdiction over "[a]n action for the partition of real property where the assessed valuation of the property at the time the action is commenced does not exceed $25,000." As it is uncontested that the assessed valuation of the property was less than $25,000 when the action was commenced in Supreme Court, contrary to plaintiff's argument, the Civil Court had jurisdiction to hear the action.

A partition action is governed by Article 9 of the Real Property Actions and Proceedings Law. "A person holding and in possession of real property as 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" (RPAPL 901[1]). Since it is undisputed that the parties are on the deed as joint tenants of the subject property, plaintiff has demonstrated, prima facie, that she is entitled to partition.

Defendant's counterclaim seeks the imposition of a constructive trust. A counterclaim in the Civil Court may only be maintained if the subject matter would be within the jurisdiction of the court "if sued upon separately" (CCA 208). The imposition of a constructive trust is a form of equitable relief (see Simonds v Simonds, 45 NY2d 233, 241 [1978]; Rowe v Kingston, 94 AD3d 852 [2012]; Jimenez v Nunez, 42 Misc 3d 145[A], 2014 NY Slip Op 50341[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]) and there is no statute conferring upon the Civil Court of the City of New York the subject matter jurisdiction to grant this affirmative equitable relief (see CCA 201, 203). Consequently, to the extent that the Civil Court adjudicated that issue as an affirmative claim, it went beyond its jurisdiction (see Nissequogue Boat Club v State of New York, 14 AD3d 542 [2005]) and, thus, the counterclaim must be dismissed. However, the Civil Court is not barred from, and indeed has the authority to, adjudicate the issue of a constructive trust as an affirmative defense to this partition action (see CCA 905; Nissequogue Boat Club, 14 AD3d 542; Fizzinoglia v Capozzoli, 58 Misc 3d 149[A], 2018 NY Slip Op 50081[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Freire v Fajardo, 28 Misc 3d 137[A], 2010 NY Slip Op 51453[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), in which the ultimate title to the property is always at issue (see RPAPL 907[1]).

Upon a review of the record, we find that defendant failed to establish a constructive-trust defense. "Generally, a constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest" (Sharp v Kosmalski, 40 NY2d 119, 121 [1976] [internal quotation marks and brackets omitted]; see Edwards v Walsh, 169 AD3d 865 [2019]; Ning Xiang Liu v Al Ming Chen, 133 AD3d 644 [2015]). "The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment" (Ning Xiang Liu v Al Ming Chen, 133 AD3d at 644 [internal quotation marks omitted]; see Sharp v Kosmalski, 40 NY2d at 121). Here, defendant failed to establish that she made any transfer in reliance on a promise, or that, prior to the parties' joint purchase, she possessed any legally cognizable interest in the property with which she could have parted (see Kaufman v Torkan, 51 AD3d 977, 980 [2008]; Schwab v Denton, 141 AD2d 714, 715 [1988]).

Since plaintiff demonstrated at trial that she is entitled to partition as a joint tenant with defendant, and defendant's sole defense was based upon a constructive trust, which was not established, the respective rights of the parties must be determined (see Levine v Goldsmith, 71 App Div 204, 209 [1902] ["The authority for the interlocutory judgment must be found in the decision of the court made upon the trial of the issues"]). There is a presumption that plaintiff and defendant each have an equal interest in the subject property (see Matter of McKelway, 221 NY 15 [1917]), which presumption has not been rebutted. In addition, under the circumstances presented, we find that the property cannot be partitioned without great prejudice to the parties and, thus, that plaintiff is entitled to a sale (see Cadle Co. v Calcador, 85 AD3d 700 [2011]; Bufogle v Greek, 152 AD2d 527 [1989]).

Accordingly, the amended final judgment is reversed, the counterclaim is dismissed, and the matter is remitted to the Civil Court for the entry of an interlocutory judgment in accordance with this decision and order."

PARTITION: WHEN "CO-HOUSING" GOES SOUR

They bought a house together as tenants in common. One party owned 1/3, the other 2/3 and after they closed, they divided the home into 2 units...but disputes began regarding the common areas. 

XING NG v. NG, 2021 NY Slip Op 31289 - Kings Co. Supreme Court 2021:

"It is well-settled that one who holds an interest in real property as a tenant in common may maintain an action for the partition of the property and for a sale, if it appears that a partition alone would greatly prejudice the owners of the premises. See Real Property Actions and Proceedings Law (hereinafter RPAPL) § 901(1); see also Tsoukas v Tsoukas, 107 AD3d 879 (2d Dept 2013); Donlon v Diamico, 33 AD3d 841 (2d Dept 2006). However, before a partition or sale may be directed, a determination must be made as to the rights, shares or interests of the parties and where a sale is demanded, whether the property or any part thereof is so circumstanced that a partition cannot be made without great prejudice to the owners. See RPAPL § 915. Such determinations must be included in the interlocutory judgment contemplated by RPAPL § 915 along with either a direction to sell at public auction or a direction to physically partition the premises. See RPAPL § 911; § 915; Hales v Ross, 89 AD3d 1261 (2d Dept 2011); see also Lauriello v Gallotta, 70 AD3d 1009 (2d Dept 2010).

Determinations of the rights and shares of the parties must be made by declaration of the court directly or after a reference to take proof and report. See RPAPL § 911; § 907; see also Mary George, D.M.D. & Ralph Epstein, D.D.S., P.C. v J. William, 113 AD2d 869 (2d Dept 1985). Moreover, because of the equitable nature of a partition action, an accounting by and between the parties is necessary, and should be done as a matter of right before entry of an interlocutory or final judgment, and before any division of funds between the parties is adjudicated. See Donlon v Diamico, 33 AD3d 841. The Court has the authority to adjudicate the rights of the parties "so each receives his or her proper share of the property and its benefits." See Brady v Varrone, 65 AD3d 600, 602 (2d Dept 2009).

Here, the plaintiffs have demonstrated their entitlement to maintain this action for partition by providing a certified copy of the deed indicating that the plaintiffs hold an undivided one-third interest in the property, and that the defendant holds an undivided two-thirds interest in the property as tenants in common, which is not disputed by the defendant. The defendant has failed to raise a triable issue of fact that a physical partition of the property can be accomplished without great prejudice to the owners. The unsworn and uncertified construction invoice submitted by the defendant which ostensibly provides an estimate of the cost of physically partitioning the premises to permit the plaintiffs access to the common areas, is insufficient to support a showing that partitioning is possible or even plausible. In light of the foregoing, the plaintiffs' motion seeking partition and sale of the property is granted.

The plaintiffs have also established their entitlement to dismissal of the defendant's first counterclaim seeking a declaratory judgment permitting her exclusive use and enjoyment of the first and second floor of the premises, including the backyard, basement, first floor backroom and storage area; that the plaintiffs have no legal entitlement to partition and sale of the property; and that the plaintiffs are not entitled to an accounting from the defendant. A tenancy in common represents a form of ownership which provides for the "right of each cotenant to use and enjoy the entire property as would a sole owner. This undivided interest is a right enjoyed by all the cotenants whether or not they are in actual possession of the premises." See Butler v Rafferty, 100 NY2d 265, 269 (2003). Therefore, the plaintiffs and the defendant each have the right to use and enjoy all parts of the premises, and contrary to the defendant's assertions, she is not entitled to exclusive use and occupancy of specific sections of the property. Moreover, the defendant has failed to demonstrate that there was a binding agreement between the parties concerning her right to exclusive use and occupancy of those particular areas of the premises. The alleged oral agreement falls within the purview of the Statute of Frauds, which holds that "[a]n oral agreement to convey an estate or interest in real property ... is nugatory and unenforceable," and "[a] party to the agreement may legally and rightfully refuse to recognize or perform it." See Pattelli v Bell, 187 Misc.2d 275, 278, 2001 NY Slip Op 21098 (Sup Ct, Richmond County 2001), quoting Woolley v Stewart, 222 NY 347, 350-351 (1918) (internal quotation marks omitted).

As to the defendant's cross-motion, she has not tendered admissible evidence establishing her entitlement to summary judgment on her second and third counterclaims which seek damages based on the plaintiffs' alleged failure to pay for the expenses, utilities, mortgage, insurance and taxes on the property. As such, that prong of the defendant's cross motion is denied. However, the defendant's motion seeking an accounting is granted, as it is a necessary requisite to a partition of sale. See Donlon v Diamico, 33 AD3d 841.

Finally, the defendant's request for dismissal of the plaintiffs' second, third, fifth, seventh and eighth causes of action based on CPLR § 3212(b) is denied. Section 3212(b) provides, in pertinent part, that "[e]xcept as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." The plaintiffs' second, third, fifth, seventh and eighth causes of action involve allegations that the defendant prevented the plaintiffs from use and occupancy of the entire premises; that the defendant ejected the plaintiffs in a "forcible and unlawful manner"; that the defendant destroyed and demolished areas of the premises; that the defendant has improperly exercised exclusive use and occupancy of the common areas of the premises; and that the defendant deliberately inflicted harm upon the plaintiffs. In the case at bar, the defendant has failed to submit admissible evidence, other than her own conclusory affidavit, demonstrating her entitlement to summary judgment as a matter of law that no genuine issue of fact exists concerning these causes of action. See Zuckerman v City of New York, 49 NY2d 557 (1980)."

THE UPHPA

On December 6, 2019, Governor Andrew Cuomo signed into law New York’s version of the Uniform Partition of Heirs Property Act (UPHPA) (RPAPL §993). Under the UPHPA, if the property for which the complaint seeks partition qualifies as “heirs property” as defined by RPAPL §993[2](e), then the filing of a complaint requesting a sale now constitutes an agreement by the plaintiff that his or her interest may be acquired by other co-tenants who have not requested a partition by sale at a value determined by the court. 

In Pachter v. 3063 BRIGHTON 8 PROPS. LLC, 2020 NY Slip Op 51108 - NY: Supreme Court September 29, 2020, defendants in a partition action attempted to raise the UPHPA as a defense to a regular partition action but this was denied:

"Defendant's motion for leave to amend its answer, to add an affirmative defense claiming that the Uniform Partition of Heirs Property Act (RPAPL § 993) is applicable to plaintiffs' partition cause of action, is denied. The statute clearly states that it is effective as of December 6, 2019, and it "applies to partition actions filed on or after [December 6, 2019]" (RPAPL § 993(3)(a)). Defendant claims that the action was commenced when the amended complaint was filed on January 22, 2020 (Defendant's Affirmation in Reply ¶¶ 4, 5). However, plaintiff disagrees, indicating that the action was commenced on August 19, 2019, when the original complaint was filed (Plaintiffs' Reply Memorandum of Law at 3). CPLR § 304(a) states that an action is commenced by the filing of a summons and complaint (CPLR § 304(a)). CPLR § 203(f) indicates that claims in an amended complaint are "interposed" when the original complaint was filed, as long as the original complaint "give[s] notice of the transactions, occurrences, or series of transactions or occurrences to be proved pursuant to the amended [complaint]" (CPLR § 203(f)). The only difference between the original and amended complaint concerns the status of the plaintiffs as beneficiaries under the will in the original complaint, as opposed to intestate heirs in the amended complaint. The amendment is not material, since the amendment has no effect on the plaintiffs' right to partition the property. Therefore, the amended complaint has no effect on the date the action was commenced (See also Valladares v. Valladares, 55 NY2d 388, 391 [1982], indicating that the action was commenced as of the service of the original complaint). Since the action was commenced on August 19, 2019, the Uniform Partition of Heirs Property Act does not apply to this action.

The cases defendant cites in support of his contention that the action was commenced by the filing of the amended complaint are distinguishable. Perez v. Paramount Communications, 92 NY2d 749 [1999], concerned whether the filing of a motion for leave to amend a complaint to add a defendant tolled the statute of limitations. This case does not involve adding additional parties. Schlapa v. Consolidated Edison Co. of NY, Inc., 174 AD3d 934 [2d. Dept. 2019], also involves the issue of adding additional defendants, indicating that the action was commenced against the additional defendants when the plaintiff "filed the supplemental summons and amended complaint with the Queens County Clerk's Office" (Id. at 935). Long v. Sowande, 27 AD3d 247 [1st Dept. 2006], can also be differentiated, as the issue in that case was whether cross claims by newly added defendants were time-barred. Therefore, this action was commenced by the filing of the initial complaint on August 19, 2019. Although defendant argues that the statute should be applied retroactively, when a statute clearly states that it applies to actions commenced after its effective date, retroactive application is precluded (Golston-Green v. City of New York, 184 AD3d 24, 24 n.1 [2d. Dept. 2020])."

NEW RULES - UNIFORM PARTITION OF HEIRS PROPERTY ACT

On December 6, 2019, Governor Andrew Cuomo signed into law New York’s version of the Uniform Partition of Heirs Property Act (UPHPA) (RPAPL §993). As the bill noted:

"As a general rule under current New York law, when real property has multiple owners who hold the property as tenants in common, any one co-owner can try to force the sale of the property by filing a partition action in court under Article 9 of the Real Property Actions and Proceedings Law. In recent years, predatory real estate speculators have taken advantage of New York's laws governing partition actions by purchasing a stake in a residential property - usually after a number of family members have inherited the property - and then using that owners hip stake to file a partition action to dispossess the family of the property through a forced sale, often for pennies on the dollar relative to the actual value of the property. Lower- and middle-class families are particularly susceptible to these types of schemes, as they often do not engage in the kind of sophisticated estate planning that could prevent predatory partitioning actions.

This legislation would address the issue of predatory partition actions, while preserving a co-owner's right to sell his or her share of the property. The Act would only apply in situations where at least one of the co-owners has inherited their property interest from a relative and there is no written agreement otherwise governing partition among the owners. In such situations, there are a number of protections in place when a co-owner files for a partition order:

- The co-owner requesting the partition must give notice to all of the other co-owners.

- The court must order an independent appraisal to determine the property's fair market value.

- Any co-owner may exercise a right of first refusal to buy out the interest of the co-owner seeking partition for a proportional share of the court-determined fair market value.

- If no co-owner elects to buy out the co-owner seeking partition, the court must first consider ordering a partition-in-kind if the property can be physically divided.

- If a partition-in-kind would be inappropriate, and the court orders a partition-by-sale, the property must be offered for sale on the open market at a price no lower than the court-determined value for a reason- able period of time and in a commercially reasonable manner. As of March 2019, eleven other states and the U.S. Virgin Islands have adopted similar legislation."

PARTITION - IT JUST DIDN'T WORK OUT

Not all homes are owned by husband and wife. Some are owned by couples in a relationship, romantic or business or otherwise. And sometimes these relationships do not work out and the home must be sold.

Weng v. Zhao, 2019 NY Slip Op 50007 - NY: Supreme Court Kings County 2019:

""A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, 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" (RPAPL 901 [1]). The right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties (Tsoukas v Tsoukas, 107 AD3d 879, 889 [2nd Dept 2013] citing, Pando v Tapia, 79 AD3d 993, 995 [2nd Dept 2010]; see also Stressler v Stressler, 193 AD2d 728 [2nd Dept 1993]). Thus, partition may be precluded by the equities presented in a given case (Ferguson v McLoughlin, 184 AD2d 294 [1st Dept 1992]).

The right to partition is absolute in the absence of countervailing conditions, and therefore, such issues as the interest of the parties and whether partition may be had without great prejudice should first be determined (Bentley v Dox, 12 AD3d 1187 [4th Dept 2004]).

An award of summary judgment on a claim for partition is established only where the movant demonstrates its ownership interest and a right to possession under a deed or other instrument of conveyance, favorable equities and that a physical partition cannot be made without great prejudice in cases wherein a sale is demanded (see Tsoukas, 107 AD3d 879, supra Arata v Behling, 57 AD3d 925 [2nd Dept 2008]).

Weng has made a prima facie showing of entitlement to judgment as a matter of law by submitting a copy of the duly-executed deed demonstrating Weng's ownership and the right to possession of the subject property as a joint tenant with Zhao."

A DISCUSSION ON THE RIGHT OF PARTITION

ZARBIS v. TRIADES, 2015 NY Slip Op 30317 - NY: Supreme Court 2015:

"The ancient remedies of actual partition, and of partition and sale are premised in equity and are now codified in Article 9 of the Real Property Actions and Proceedings Law (see Chang v Chang, 137 AD2d 371, 529 NYS2d 294 [1st Dept 1988]; Worthing v Cossar, 93 AD2d 515, 462 NYS2d 920 [4th Dept 1983]; Grody v Silverman, 222 AD 526, 226 NY 468 [1928]). Under RPAPL § 901, "a person holding and in possession of real property as a joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, 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" (RPAPL § 901[1]; Tsoukas v Tsoukas, 107 AD3d 879, 968 NYS2d 109 [2d Dept 2013]). Accordingly, one owning an interest in real property with a right of possession such as a tenant, joint tenant or a tenant in common may seek physical partition of the property, or, a partition and sale thereof, if it appears that physical partition alone would greatly prejudice the owners of the premises (see Cadle Co. v Calcador, 85 AD3d 700, 926 NYS2d 106 [2d Dept 2011]; Bufogle v Greek, 152 AD2d 527, 528, 543 NYS2d 152 [2d Dept 1989]; see also Arata v Behling, 57 AD3d 925, 870 NYS2d 450 [2d Dept 2008]; Wilbur v Wilbur, 266 AD2d 535, 699 NYS2d 103 [2d Dept 1999]). While an accounting is a necessary incident of a partition action and should be had as a matter of right before entry of an interlocutory or final judgment and before any division of money between the parties is adjudicated (see Sampson v Delane, 34 AD3d 349, 824 NYS2d 277 [1st Dept]; Donlon v. Diamico, 33 AD3d 841, 823 NYS2d 483 [2d Dept 2006]; McVicker v Sarma, 163 AD2d 721, 558 NYS2d 997 [2d Dept 1990]; Worthing v Cossar, 93 AD2d 515, 462 NYS2d 920 [2d Dept [1983]), a sale without an accounting is permissible in cases wherein no accounting is demanded nor any claims for an adjustment of the rights of any party due to receipt by one party of more than his or her proper proportion of the rents, profits or share interest in the premises are asserted (see Robert McCormick v Pickert, 51 AD3d 1109, 856 NYS2d 306 [2d Dept 2008]).

In the absence of an agreement against partition, a partition of real property owned by joint tenants or tenants in common is a matter of right whenever one or more of them do not wish to hold and use the property under their tenancies (see Smith v. Smith, 116 AD2d 810, 497 NYS2d 19 [3d Dept 1986]; Gasko v Del Ventura, 96 AD2d 896, 466 NYS2d 64 [2d Dept 1983]; Chew v Sheldon, 214 NY 344, 108 NY 522 [1915]). This right to the remedy of partition has been long recognized as a "valuable part of such interest in that it affords the owner a means of disposing of his interest which cannot be defeated by his co-owners" (Rosen v Rosen, 78 AD2d 911, 912, 432 NYS2d 921 [3d Dept 1989]). The right to partition is not absolute, however, and while a tenant in common or joint teneant has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties (see Tsoukas v Tsoukas, 107 AD3d 879, supra; Pando v Tapia, 79 AD3d 993, 995, 914 NYS2d 226 [2d Dept 2010]; Arata v Behling, 57 AD3d 925, 926, 870 NYS2d 450 [2d Dept 2008]; Graffeo v Paciello, 46 AD3d 613, 614, 848 NYS2d 264 [2d Dept 2007]).

Before a partition or sale may be directed, a determination must be made as to the rights, shares, or interests of the parties and, in those cases wherein a sale is demanded rather than an actual physical partition, whether the property or any part thereof is so circumstanced that a partition thereof cannot be made without great prejudice to the owners (see RPAPL § 915). Such determinations must be included in the interlocutory judgment contemplated by RPAPL § 915 along with either a direction to sell at public auction or a direction to physically partit on the premises (see RPAPL § 911; § 915; Hales Ross, 89 AD3d 1261, 932 NYS2d 263 [2d Dept 2011]; see also Lauriello v Gallotta, 70 AD3d 1009, 895 NYS2d 495 [2d Dept 2010]; Wolfe v Wolfe, 187 AD2d 628, 590 NYS2d 504 [2d Dept 1992]). Determinations of the rights and shares of the parties must be made by declaration of the court directly or after a reference to take proof and report (see RPAPL § 911; § 907; Mary George, D.M.D. & Ralph Epstein, D.D.S., P.C. v J. William, 113 AD2d 869, 493 NYS2d 794 [2d Dept 1985]; see also Colley v Romas, 50 AD3d 1338, supra). Inquiry and ascertainment by the court or by reference into the existence of creditors having liens or other interest in the premises is also required and, if there be any such creditors, proceedings thereon must be held as required by RPAPL § 913. While the court may accept proof of the absence of the existence of any such creditor and dispense with the reference and the proceedings required thereon, a finding to that effect should issue.

The law is clear that in order to maintain an action for partition the plaintiff or other claimant must be the owner of an interest in real property and have legal title thereto or to a part thereof (see Sealy v Clifton, LLC, 68 AD3d 846, 890 NYS2d 598 [2d Dept 2009]; Mohamed v Defrin, 45 AD3d 252, 844 NYS2d 265 [1st Dept 2007]; Garland v Raunheim, 29 AD2d 383, 288 NYS2d 417 [1st Dept 1968]; Gifford v Whittemore, 4 AD2d 379, 165 NYS2d 201 [3d Dept 1957]; Harvey v Metz, 271 AD 788, 65 NYS2d 85 [2d Dept 1946]; O'Connor v O'Connor, 249 AD 515, 293 NYS 64 [2d Dept 1937]; McGillivray v Brundage, 36 Misc.2d 106, 231 NYS2d 870 [Sup. Ct. Monroe Cty. 1962]; Fraser v Bowerman, 104 Misc. 260, 171 NYS 835 [Sup Ct. Niagra Cty. 1918), aff'd. 187 AD 926, 174 NYS 903 [4th Dept 1919]). It is equally clear that a person who is possessed of an enforceable right to a conveyance of an interest in real property, but who is without legal title to such property, has no cognizable claim for partition (see Side v Brenneman, 7 AD 273, 40 NYS 3 [1st Dept 1896]).

Viable claims for partition and sale must thus rest upon allegations of a joint or common ownership in real property with attendant rights to possession and that the equities favor the claimant and, where a sale rather than an actual partition is demanded, proof that a physical partition of the premises cannot be made without great prejudice to the parties is also required (see Galitskaya v Presman, 92 AD3d 637, 937 NYS2d 878 [2d Dept 2012]; Cadle Co. v Calcador, 85 AD3d 700, supra; James v James, 52 AD3d 474, 859 NYS2d 479 [2d Dept 2008]). An award of summary judgment on a claim for partition is established only where the movant demonstrates its ownership interest and a right to possession under a deed or other instrument of conveyance, favorable equities and that a physical partition cannot be made without great prejudice in cases wherein a sale is demanded (see Tsoukas v Tsoukas, 107 AD3d 879, supra, Arata v Behling, 57 AD3d 925, 870 NYS2d 450 [2d Dept 2008])."