Partition Action.

 I own a house with my ex boyfriend, we have been broken up for three years and he lives in the house and refuses to buy me out we owe very little on the house, i pay more in rent than the mortgage. What can I do?

A: Your situation is quite common and unfortunately since you do not live in the house time is on the side of your ex-boyfriend. If you have exhausted all your non-legal options you would need to start a partition action to try to force him to buy you out or for a court to require a sale of the house. A partition action is a lawsuit seeking to force the sale of property. It is similar to a foreclosure in that if the action is successful and goes to conclusion the court will appoint a referee and order the house be sold at auction. Usually a goal of starting the suit is to get the co-owners to have a realistic conversation as to buying out the unhappy owners share or selling the property to end the dispute.

The suit is started with a summons and complaint where you would show you are an owner and that you have made demands upon the other owner to sell the property (or buy you out) and that you are seeking court assistance in forcing a sale. If the court accepts your suit the judge will appoint a referee to determine the party’s ownership interests and conduct a sale of the property. A sale date will be set and the property will be auctioned off to the highest bidder. Normally the process does not reach a sale as the parties should hopefully reach an agreement without the necessity of the actual sale. Each step of the suit will cost both sides legal fees/court costs and should the sale be carried out the property will usually be sold for less as it is a distress sale. In the majority of the cases unless the parties are totally unreasonable a settlement should be reached to allow for one party to buy out the other or both parties agree to allow the house to be sold to a third party to maximize the sales price and avoid any unnecessary legal fees

Things to consider before starting a partition action:

1)Cost/Benefit analysis-Before starting a partition action a potential plaintiff needs to make sure there is sufficient equity in the house and she has the time and resources to see the lawsuit to the end.

2) Credit damage – if there is a mortgage on the premises that there is a possibility that the other party may no longer pay his share of the mortgage and housing bills. Your attorney will discuss with you the potential to seek reimbursement for payments for your share of expenses, failure to pay a mortgage will have adverse effects on your credit and could lead to a foreclosure.

3) How title is held-Before speaking about partition action it is important to make sure of how the title is held. Assuming you and your boyfriend are both on the deed you can hold title as tenants in common or joint tenants with right of survivorship.The important distinction is what happens upon the death of one of the owners.Tenants in common own their shares individually and upon death their share would pass under the terms of their will. Joint tenants mean that upon the death of the first owner the other owner would receive the dead owner’s share.

4) Transaction costs-even in the best case when the defendant agrees to buy out the plaintiff or sell thehouse to a third party there will be transaction costs. Transfer taxes, legal fees and brokerage commission all need to be paid if theproperty is sold. Often the parties will agree to allow the defendant to buy out the plaintiff’s interest for less than market value.

5) Buy-out of plaintiff/mortgage liability-if a buyout is agreed to the plaintiff must be aware that unless the existing mortgage on the house is satisfied he may have liability to the lender if the defendant fails to make the payment. Good practice is to have the existing mortgage satisfied or to have the lender acknowledge that the plaintiff is no longer obligated (difficult to accomplish). If this is not possible an indemnity agreement from defendant to plaintiff can be done.

A partition action can be expensive and time consuming but if often necessary especially in a situation like yours.

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Steven T. Decker is an experienced real estate lawyer, author and speaker.  With over 20 years of experience, Steven represents individuals and investors in the purchase of residential and commercial real property.  Steven is the author of “The Five Myths that can Ruin the Purchase of Your Home” and he is the publisher of the “New York Real Estate Law Blog”.  If you are buying or selling a home or commercial property in Staten Island, New York City or New Jersey contact Steven T. Decker, Esq. to discuss the services that he offers and how his legal representation will assist you.

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