§ 993 — Uniform partition of heirs property act

§ 993. Uniform partition of heirs property act. 1. Short title. This\nsection shall be known as the "uniform partition of heirs property act".\n 2. Definitions. For purposes of this section, the following terms\nshall have the following meanings:\n (a) "Ascendant" means an individual who precedes another individual in\nlineage, in the direct line of ascent from such other individual.\n (b) "Collateral" means an individual who is related to another\nindividual under the law of intestate succession of this state but who\nis not such other individual's ascendant or descendant.\n (c) "Descendant" means an individual who follows another individual in\nlineage, in the direct line of descent from such other such individual.\n (d) "Determination of value" means a court order determining the fair\nmarket value of heirs property under subdivision six or ten of this\nsection or adopting the valuation of the property agreed to by all\nco-tenants.\n (e) "Heirs property" means real property held in tenancy in common\nwhich satisfies all of the following requirements as of the filing of a\npartition action:\n (i) there is no agreement in a record binding all of the co-tenants\nwhich governs the partition of the property;\n (ii) any of the co-tenants acquired title from a relative, whether\nliving or deceased;\n (iii) the property is used for residential or agricultural purposes;\nand\n (iv) any of the following applies:\n (A) twenty percent or more of the interests are held by co-tenants who\nare relatives;\n (B) twenty percent or more of the interests are held by an individual\nwho acquired title from a relative, whether living or deceased;\n (C) twenty percent or more of the co-tenants are relatives of each\nother; or\n (D) any co-tenant who acquired title from a relative resides in the\nproperty.\n (f) "Partition by sale" means a court-ordered sale of the entire heirs\nproperty, or the portion thereof in which any co-tenant who acquired\ntitle from a relative resides, whether by auction, sealed bids, or\nopen-market sale conducted under subdivision ten of this section.\n (g) "Partition in kind" means partition or division of heirs property\ninto physically distinct and separately titled parcels.\n (h) "Record" means information that is inscribed on a tangible medium\nor that is stored in an electronic or other medium and is retrievable in\nperceivable form.\n (i) "Relative" means an ascendant, descendant, or collateral or an\nindividual otherwise related to another individual by blood, marriage,\nadoption, or law of this state other than under this section.\n 3. Applicability; relation to other law. (a) This section applies to\npartition actions filed on or after the effective date of this section.\n (b) In any action to partition real property, the court shall\ndetermine, after notice and the right to be heard afforded to each\nparty, whether the property is heirs property. If the court determines\nthat the property is heirs property, the property shall be partitioned\nin accordance with this section unless all of the co-tenants otherwise\nagree in a record.\n (c) This section shall supplement the general partition statute of\nthis article and, if an action is governed by this section, shall\nreplace the provisions of such general partition statute that are\ninconsistent with this section.\n 4. Service; notice by posting. (a) This section shall not limit or\naffect the method by which service of a complaint in a partition action\nmay be made.\n (b) If the plaintiff in a partition action seeks an order of notice by\npublication and the court determines that the property may be heirs\nproperty, the plaintiff, not later than ten days after the court's\ndetermination, shall post and maintain while the action is pending a\nconspicuous sign on the property that is the subject of the action. The\nsign shall state that the action has commenced and identify the name and\naddress of the court and the common designation by which the property is\nknown. The court may require the plaintiff to publish on the sign the\nname of the plaintiff and the known defendants.\n 5. Settlement conference. (a) In any partition action of heirs\nproperty, plaintiffs shall file proof of service within twenty days of\nsuch service, however service is made, and the court shall hold a\nmandatory conference within sixty days after the date when a request for\njudicial intervention is filed, or on such adjourned date as has been\nagreed to by the parties, for the purpose of holding settlement\ndiscussions pertaining to the relative rights and obligations of the\nparties with respect to the subject property including, but not limited\nto, as set forth in this section.\n (b) Upon the filing of a request for judicial intervention, the court\nshall promptly send a notice to parties advising them of the time and\nplace of the settlement conference, the purpose of the conference and\nthe requirements of this section. The notice shall be in a form\nprescribed by the office of court administration, or, at the discretion\nof the office of court administration, the administrative judge of the\njudicial district in which the action is pending. Plaintiff shall post a\ncopy of the settlement conference notice in a conspicuous place on the\nproperty within twenty days of the date of the notice.\n (c) The settlement conference may be adjourned or reconvened from time\nto time as appropriate during the pendency of the partition action. At\nany conference held pursuant to this section, the plaintiffs and the\ndefendants shall appear in person or by counsel, and each party's\nrepresentative at the conference shall be fully authorized to dispose of\nthe entirety or any portion of the case. If the defendant is appearing\npro se, the court shall advise the defendant of the nature of the action\nand his or her rights and responsibilities as a defendant.\n (d) At the first settlement conference held pursuant to this section,\nif the defendant has not filed an answer or made a pre-answer motion to\ndismiss, the court shall (i) advise the defendant of the requirement to\nanswer the complaint, (ii) explain what is required to answer a\ncomplaint in court, (iii) advise that the ability to contest the\npartition action and assert defenses may be lost if an answer is not\ninterposed, (iv) set a deadline for any co-tenants requesting partition\nby sale, and (v) provide information about available resources for legal\nassistance. A defendant who appears at the settlement conference but who\nfailed to file a timely answer, pursuant to rule three hundred twenty of\nthe civil practice law and rules, shall be presumed to have a reasonable\nexcuse for the default and shall be permitted to serve and file an\nanswer, without any substantive defenses deemed to have been waived,\nwithin thirty days of initial appearance at the settlement conference.\nThe default shall be deemed vacated upon service and filing of an\nanswer.\n (e) Both the plaintiffs and defendants shall negotiate in good faith\nto reach a mutually agreeable resolution including, but not limited to,\na tenancy in common agreement, a co-tenant buyout and the allocation,\nmechanics and financing thereof as provided in subdivision seven of this\nsection, a partition in kind as provided in subdivisions eight and nine\nof this section, an open market sale as provided in subdivision ten of\nthis section, or any other agreement or loss mitigation that is fair and\nreasonable considering the totality of factors listed in paragraph (a)\nof subdivision nine of this section.\n (f) If the parties do not reach a mutually agreeable resolution, the\nreferee, judicial hearing officer, or other staff designated by the\ncourt to oversee the settlement conference process shall make a report\nof findings of fact, conclusions of law and recommendations for relief\nto the court concerning any party's failure to negotiate in good faith\npursuant to paragraph (e) of this subdivision. If the court determines a\nplaintiff has failed to negotiate in good faith, the partition action\nshall be dismissed.\n (g) Any motions submitted by any party to the action may be held in\nabeyance while the settlement conference process is ongoing, except for\nmotions concerning (i) a determination of the percentage interests, if\nany, owned by any alleged co-tenant if such interests are in dispute and\n(ii) compliance with this rule and its implementing rules including\napplications to extend in the interests of justice any deadlines fixed\nherein.\n (h) In addition to any other qualifications otherwise required, each\ncommissioner appointed under section nine hundred fifteen of this\narticle and any officer appointed to conduct a sale shall be\ndisinterested, impartial and not related to a party to or participant in\nthe action.\n 6. Determination of value. (a) If the court determines that the\nproperty that is the subject of a partition action is heirs property,\nthe court shall determine the fair market value of the heirs property\nfor purposes of subdivision seven of this section as follows, utilizing\nparagraph (d) of this subdivision, unless it has determined that\nparagraph (b) or (c) of this subdivision apply.\n (b) If all co-tenants have agreed to the value of the property or to\nanother method of valuation, the court shall adopt such value or the\nvalue produced by the agreed method of valuation.\n (c) If the court determines that the evidentiary value of an appraisal\nis outweighed by the cost of the appraisal, the court, after an\nevidentiary hearing, shall determine the fair market value of the\nproperty and send notice of the value to the parties.\n (d) If paragraph (b) or (c) of this subdivision do not apply, the\ncourt shall order an appraisal by a disinterested real estate appraiser\nlicensed in this state to determine the fair market value of the\nproperty. Any determination of value under paragraph (c), (d), (f) or\n(g) of this subdivision shall assume sole ownership of the fee simple\nestate. On completion of the appraisal, the appraiser shall file a sworn\nor verified appraisal with the court.\n (e) Not later than ten days after an appraisal is filed under\nparagraph (d) of this subdivision, the court shall send notice to each\nparty with a known address, stating:\n (i) the appraised fair market value of the property plus the allowed\ncost of the appraisal;\n (ii) that the appraisal is available at the clerk's office; and\n (iii) that a party may file with the court an objection to the\nappraisal not later than thirty days after the notice is sent, stating\nthe grounds for the objection.\n (f) If an appraisal is filed with the court pursuant to paragraph (d)\nof this subdivision, the court shall conduct a hearing to determine the\nfair market value of the property not sooner than thirty days after a\ncopy of the notice of the appraisal is sent to each party under\nparagraph (e) of this subdivision, whether or not an objection to the\nappraisal is filed under subparagraph (iii) of paragraph (e) of this\nsubdivision. In addition to the court-ordered appraisal, the court may\nconsider any other evidence of value offered by a party.\n (g) After a hearing under paragraph (f) of this subdivision, but\nbefore considering the merits of the partition action, the court shall\ndetermine the fair market value of the property and send notice to the\nparties of the value.\n 7. Co-tenant buyout. (a) Every co-tenant who requests or joins a\nrequest for partition of heirs property by sale has thereby agreed that\nhis or her interest may be acquired in accordance herewith at the value\ndetermined under subdivision six of this section by the co-tenants who\nhave not sought or joined in the request for partition by sale. Upon\ndetermination that the property is heirs property and prior to the\ndetermination of value under subdivision six of this section, the court\nshall send notice to all parties identifying the owners of interests\nthat have sought partition by sale, the percentage interests such owners\nallege to hold and of the right of the remaining co-tenants to avert\npartition by sale by exercising the right to purchase all of the\ninterests of the co-tenants who requested partition by sale.\n (b) Not later than forty-five days after the notice of the\ndetermination of value under subdivision six of this section is sent and\nby the date specified in such notice, any co-tenant, except a co-tenant\nthat requested partition by sale, may give notice to the court of the\ntotal amount of percentage interests subject to purchase that he or she\nelects to buy; provided, however, the court shall make a determination\nof each co-tenant's percentage ownership interest in the property prior\nto sending notice of the determination of value if such interest is in\ndispute and shall consider all facts as determined by the court and\npresented by the parties, and all laws and rules that govern the\ntransfer, succession and acquisition of title through probate, intestacy\nor otherwise.\n (c) The purchase price for percentage interests shall be the value of\nthe entire parcel determined under subdivision six of this section\nmultiplied by the aggregate amount of the percentage interests subject\nto purchase.\n (d) After expiration of the period in paragraph (b) of this\nsubdivision, the following rules apply:\n (i) If one or more co-tenants have elected in the aggregate to buy at\nleast the total amount of percentage interests subject to purchase, the\ncourt shall notify all the parties of such fact.\n (ii) If the electing co-tenants' offers equal or exceed the amount of\npercentage interests subject to purchase, the court shall allocate the\nright to buy those interests among the electing co-tenants based on each\nelecting co-tenant's existing fractional ownership of the entire parcel\ndivided by the total existing fractional ownership of all co-tenants\nelecting to buy, reserving priority, first, to electing co-tenants who\nacquired the interest from a relative and reside in the property and,\nsecond, to all other electing co-tenants who acquired their interest\nfrom a relative, and send notice to all the parties of the foregoing and\nof the price to be paid by each electing co-tenant.\n (iii) If co-tenants with the right to elect fail to elect to purchase\nthe entirety of the interests of the co-tenants whose interests are\nsubject to purchase, the court shall send notice to all the parties of\nsuch fact and resolve the partition action under paragraphs (a) and (b)\nof subdivision eight of this section.\n (e) If the court sends notice to the parties under subparagraph (i) or\n(ii) of paragraph (d) of this subdivision, the court shall set a date,\nnot sooner than sixty days after the date the notice was sent, by which\nelecting co-tenants must pay their apportioned price into the court.\nAfter this date, the following rules apply:\n (i) If all electing co-tenants timely pay his or her apportioned price\nto the court, the court shall issue an order reallocating all the\ninterests of the co-tenants and disburse the amounts held by the court\nto the persons entitled to them.\n (ii) If no electing co-tenant timely pays his or her apportioned\nprice, the court shall resolve the partition action under paragraphs (a)\nand (b) of subdivision eight of this section as if the interests of the\nco-tenants that requested partition by sale were not purchased.\n (iii) If one or more, but not all, of the electing co-tenants fail to\npay their apportioned price on time, the court, on motion, shall give\nnotice to the electing co-tenants that paid their apportioned price of\npercentage of the unpurchased interests remaining and the price for all\nsuch interests.\n (f) Not later than twenty days after the court gives notice pursuant\nto subparagraph (iii) of paragraph (e) of this subdivision, any\nco-tenant that paid his or her apportioned price may elect to purchase\nall of the remaining interest by paying the entire price to the court.\nAfter the twenty day period, the following rules shall apply:\n (i) If only one co-tenant pays the entire price for the remaining\ninterest, the court shall issue an order reallocating the remaining\ninterest to such co-tenant. The court shall issue promptly an order\nreallocating the interests of all of the co-tenants and disburse the\namounts held by the court to the persons entitled to such amounts.\n (ii) If no co-tenant pays the entire price for the remaining interest,\nthe court shall resolve the partition action under paragraphs (a) and\n(b) of subdivision eight of this section as if the interests of the\nco-tenants that requested partition by sale were not purchased.\n (iii) If more than one co-tenant pays the entire price for the\nremaining interest, the court shall reapportion those remaining\ninterests among those paying co-tenants, based on each paying\nco-tenant's original fractional ownership of the entire parcel divided\nby the total original fractional ownership of all co-tenants that paid\nthe entire price for the remaining interest. The court shall issue\npromptly an order reallocating all of the co-tenants' interests,\ndisburse the amounts held by the court to the persons entitled to such\namounts, and promptly refund any excess payment held by the court.\n (g) Not later than forty-five days after the court sends notice to the\nparties pursuant to paragraph (a) of this subdivision, any co-tenant\nentitled to buy an interest under this subdivision may request the court\nto authorize the sale as part of the pending action of the interests of\nco-tenants named as defendants and served with the complaint but that\ndid not appear in the action.\n (h) If the court receives a timely request under paragraph (g) of this\nsubdivision, the court, after a hearing, may deny the request or\nauthorize the requested additional sale on such terms as the court\ndetermines are fair and reasonable, subject to the following\nlimitations:\n (i) a sale authorized under this subdivision may occur only after the\npurchase prices for all interests subject to sale under paragraphs (a),\n(b), (c), (d), (e) and (f) of this subdivision have been paid to the\ncourt and such interests have been reallocated among the co-tenants as\nprovided in such paragraphs; and\n (ii) the purchase price for the interest of a non-appearing co-tenant\nis based on the court's determination of value under subdivision six of\nthis section.\n 8. Partition alternatives. (a) If all the interests of all co-tenants\nthat requested partition by sale are not purchased by other co-tenants\npursuant to subdivision seven of this section, or if after conclusion of\nthe buyout under subdivision seven of this section, a co-tenant remains\nthat has requested partition in kind, the court shall order partition in\nkind unless the court, after consideration of the factors listed in\nsubdivision nine of this section, finds that partition in kind will\nresult in great manifest prejudice to the co-tenants as a group. In\nconsidering whether to order partition in kind, the court shall approve\na request by two or more parties to have their individual interests\naggregated.\n (b) If the court does not order partition in kind under paragraph (a)\nof this subdivision, the court shall order partition by sale pursuant to\nsubdivision ten of this section provided that, if no co-tenant timely\nrequested partition by sale, the court shall dismiss the action.\n (c) If the court orders partition in kind pursuant to paragraph (a) of\nthis subdivision, the court may require that one or more co-tenants pay\none or more other co-tenants amounts so that the payments, taken\ntogether with the value of the in kind distributions to the co-tenants,\nwill make the partition in kind just and proportionate in value to the\nfractional interests held.\n (d) If the court orders partition in kind, the court shall allocate to\nthe co-tenants that are unknown, cannot be located, or the subject of a\ndefault judgment, if the co-tenants interests were not bought out\npursuant to subdivision seven of this section, a part of the property\nrepresenting the combined interests of such co-tenants as determined by\nthe court and such part of the property shall remain undivided.\n 9. Considerations for partition in kind. (a) In determining under\nsubdivision eight of this section whether partition in kind would result\nin great manifest prejudice to the co-tenants as a group, the court\nshall consider the following:\n (i) whether the heirs property practicably can be divided among the\nco-tenants;\n (ii) whether partition in kind would apportion the property in such a\nway that the aggregate fair market value of the parcels resulting from\nthe division would be materially less than the amount reasonably\nexpected to be realized if the property were sold as a whole, taking\ninto account the conditions under which a court-ordered sale likely\nwould occur;\n (iii) evidence of the collective duration of ownership or possession\nof the property by a co-tenant and one or more predecessors in title or\npredecessors in possession to the co-tenant who are or were relatives of\nthe co-tenant or each other;\n (iv) a co-tenant's sentimental attachment to the property, including\nany attachment arising because the property has ancestral or other\nunique or special value to the co-tenant;\n (v) the lawful use being made of the property by a resident or other\nco-tenant and the degree to which any such co-tenant would be harmed if\nthe co-tenant could not continue the same use of the property;\n (vi) the degree to which the co-tenants have contributed their pro\nrata share of the property taxes, insurance, and other expenses\nassociated with maintaining ownership of the property or have\ncontributed to the physical improvement, maintenance, or upkeep of the\nproperty;\n (vii) the price, terms and conditions of the acquisition of the\nco-tenant's interest in the property if such co-tenant is not a relative\nof the person from whom it acquired his or her interest; and\n (viii) any other relevant factor.\n (b) The court shall not consider any one factor in paragraph (a) of\nthis subdivision to be dispositive without weighing the totality of all\nrelevant factors and circumstances.\n 10. Open-market sale, sealed bids, or auction. (a) If the court orders\na sale of heirs property, notwithstanding section two hundred thirty-one\nof this chapter, such sale shall be an open-market sale under this\nsubdivision unless the court finds that a sale by sealed bids or an\nauction would be more economically advantageous and in the best interest\nof the co-tenants as a group.\n (b) If the court orders an open-market sale and the parties, not later\nthan ten days after the entry of the order, agree on a real estate\nbroker licensed in this state to offer the property for sale, the court\nshall appoint the broker and establish a reasonable commission. If the\nparties do not agree on a broker, the court shall appoint a\ndisinterested real estate broker licensed in this state to offer the\nproperty for sale and shall establish a reasonable commission. The\nbroker shall offer the property for sale in a commercially reasonable\nmanner at a price no lower than the determination of value and on the\nterms and conditions established by the court.\n (c) If the broker appointed under paragraph (b) of this subdivision\nobtains within a reasonable time an offer to purchase the property for\nat least the determination of value:\n (i) the broker shall comply with the reporting requirements in\nsubdivision eleven of this section; and\n (ii) the sale may be completed in accordance with the laws of this\nstate other than this section.\n (d) If the broker appointed under paragraph (b) of this subdivision\ndoes not obtain within a reasonable time an offer to purchase the\nproperty for at least the determination of value, the court, after a\nhearing, may:\n (i) order that the property continue to be offered for an additional\ntime, by the same or a substitute broker, in accordance with paragraph\n(b) of this subdivision; or\n (ii) if it determines that doing so would not be in the best interests\nof the parties, approve the highest outstanding offer.\n (e) If after the court has appointed a substitute broker and there are\nno reasonable offers for the property, the court may order the property\nbe sold by sealed bids or an auction and, the court shall set terms and\nconditions of the sale. If the court orders an auction, the auction\nshall be conducted in accordance with section two hundred thirty-one of\nthis chapter.\n (f) If a purchaser is entitled to a share of the proceeds of the sale,\nthe purchaser is entitled to a credit against the price in an amount\nequal to the purchaser's share of the net proceeds.\n 11. Report of open-market sale. (a) Unless required to do so within a\nshorter time by this article, a broker appointed under paragraph (b) of\nsubdivision ten of this section to offer heirs property for open-market\nsale shall file a report with the court not later than seven days after\nreceiving an offer to purchase the property for at least the value\ndetermined under subdivision six or ten of this section.\n (b) The report required by paragraph (a) of this subdivision shall\ncontain the following information:\n (i) a description of the property to be sold to each buyer;\n (ii) the name of each buyer;\n (iii) the proposed purchase price;\n (iv) the terms and conditions of the proposed sale, including the\nterms of any owner financing;\n (v) the amounts to be paid to lienholders;\n (vi) a statement of contractual or other arrangements or conditions of\nthe broker's commission; and\n (vii) other material facts relevant to the sale.\n 12. Prohibition on initiation of a partition action. No partition\naction related to an heirs property may be initiated by a party that\npurchased or otherwise acquired their share or shares by means other\nthan inheritance, and who did not inherit their share or shares directly\nfrom a person who was a co-tenant prior to the property becoming heirs\nproperty or from a co-tenant who was an heir thereto.\n 13. Right of first refusal. (a) When a co-tenant receives a bona fide\noffer from a non-co-tenant to purchase a share or shares of an heirs\nproperty and the co-tenant intends to accept or respond with a\ncounteroffer, the co-tenants who inherited their share or shares of the\nproperty, or the co-tenants who are relatives to those co-tenants who\ninherited their share or shares of the property shall have the right to\npurchase such shares for the identical price, terms, and conditions of\nthe offer or counteroffer, with first priority to any co-tenant who\noccupies the property as their primary residence and second priority to\nany co-tenant who otherwise utilizes the property.\n (b) It shall be the duty of the non-co-tenant who made the initial\noffer for the share or shares of the property as well as the co-tenant\nwho received the offer to exercise all due diligence to identify all of\nthe other co-tenants to the property and notify such co-tenants of the\npending offer. Such notice shall include the names, addresses, phone\nnumbers and electronic mail addresses of all of the other co-tenants.\nNotice shall be made in the same manner as set forth in section three\nhundred eight of the civil practice law and rules. The other co-tenants\nshall have one hundred eighty days from the date they are notified of\nthe offer to match such offer.\n (c) In the event that the other co-tenants are not notified of the\noffer and the sale is completed, and the offeror did not exercise the\nrequired due diligence to notify the other co-tenants of the heirs\nproperty, the other co-tenants shall have the right to purchase the\nshares from the non-relative co-tenant for the price paid by such\nnon-relative co-tenant, plus any applicable interest at a rate of two\npercent per annum. Such right shall expire one hundred eighty days after\nthe other co-tenants to the heirs property are made aware of the sale.\n