What circumstances will a judge consider to stop or prolong the sale of a house in a partition action?
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What circumstances will a judge consider to stop or prolong the sale of a house in a partition action?
3 siblings, including myself as executor and trustee, own equal parts of a house left to us by Will. 1 insists on selling now or to be bought out in a lump sum; a sum which is impossible for us to acquire. I’ve made her the best offer I can possibly make – $100,000 lump sum and payments of approximately $60,000 a year until we reach $430,000. Also, the third beneficiary who resides in the house and who is currently in a mandated substance abuse program and will be for at least another year, has suffered extraordinary hardships and is in no way capable of such change.
Asked on August 12, 2011 New York
Answers:
FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
From my read of your question, there has yet to be a partition lawsuit filed by your one sibling which desired to be bought out of the property as to his or her one third interest in.
Suggested path for resolution:
If no partition action has been filed or even if one has, have you considered trying to obtain a conventional loan for the sibling's one-third interest that desires to be bought out, have an established escrow coordinate the sale where a written purchase agreement is signed?
You would end up owning two-thirds of the property, carry a mortgage (trust deed) on the property and your one sibling is bought out who wishes to be.
Answer to your question:
In a partition action which is typically an equitable cause of action, the judge, not a jury assuming a partition order is made will order the property to be sold in the open market at a certain price if the various owners cannot come to an understanding as to purchase and sale.
The court could continue the listing of the home post order of partition if one of the owners is making great efforts to come up with the purchase funds to buy out another owner. In such actions, the court has much discretion in effecting the sale of the home as a whole or a partial interest of it as far as time frames progress.
Good luck.
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