What rights do I have to force the sale of a condo my brother lives in, of which we both are 50% owners?

He does not want to sell and can’t afford to buy me out. There is no lease agreement, I have never collected rent after moving out. Do I have any legal rights to collect rent or back rent?

Asked on September 13, 2012 under Real Estate Law, New York


Mark Siegel / Law Office of Mark A. Siegel

Answered 8 years ago | Contributor

Under NY law, certain parties, including tenants in common & joint tenants with a right of survivorship, can start an action for partition & sale. The Court is empowered to judicially order the sale of real property. The Court also has the power to appoint a referee to conduct an accounting, which determines the respective contributions of the co-owners for maintenance & upkeep of the property, & how the sale proceeds should be distributed after the court ordered sale.

Co-owners cannot charge one another rent, since their relationship is not that of lessor & lessee. However, if the property could be legally rented to a tenant, but for the occupancy of one co-owner, the other co-owner might try to have the referee consider the other co-owner's loss of rental income, during the accounting by the referee.

When the referee completes the accounting & has reviewed each co-owner's admissible evidence & documentation (including satisfactory proof re: mortgage payments, taxes & the payment of other expenses), the referee submits a report to the judge, stating his or her findings & conclusions. The judge can confirm or reject the referee's report, or send the matter back to the referee with specific directions from the Court.

You may wish to seriously consider retaining an attorney who practices in the area of real estate litigation. A partition action is complex legal matter, which requires proper evaluation & representation by an experienced attorney based upon the particular facts & law. I hope this provided you with a general overview of partition actions in NY.   



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