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SECTION 993
Uniform partition of heirs property act
Real Property Actions & Proceedings (RPA) CHAPTER 81, ARTICLE 9
§ 993. Uniform partition of heirs property act. 1. Short title. This
section shall be known as the "uniform partition of heirs property act".

2. Definitions. For purposes of this section, the following terms
shall have the following meanings:

(a) "Ascendant" means an individual who precedes another individual in
lineage, in the direct line of ascent from such other individual.

(b) "Collateral" means an individual who is related to another
individual under the law of intestate succession of this state but who
is not such other individual's ascendant or descendant.

(c) "Descendant" means an individual who follows another individual in
lineage, in the direct line of descent from such other such individual.

(d) "Determination of value" means a court order determining the fair
market value of heirs property under subdivision six or ten of this
section or adopting the valuation of the property agreed to by all
co-tenants.

(e) "Heirs property" means 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.

(f) "Partition by sale" means a court-ordered sale of the entire heirs
property, or the portion thereof in which any co-tenant who acquired
title from a relative resides, whether by auction, sealed bids, or
open-market sale conducted under subdivision ten of this section.

(g) "Partition in kind" means partition or division of heirs property
into physically distinct and separately titled parcels.

(h) "Record" means information that is inscribed on a tangible medium
or that is stored in an electronic or other medium and is retrievable in
perceivable form.

(i) "Relative" means an ascendant, descendant, or collateral or an
individual otherwise related to another individual by blood, marriage,
adoption, or law of this state other than under this section.

3. Applicability; relation to other law. (a) This section applies to
partition actions filed on or after the effective date of this section.

(b) In any action to partition real property, the court shall
determine, after notice and the right to be heard afforded to each
party, whether the property is heirs property. If the court determines
that the property is heirs property, the property shall be partitioned
in accordance with this section unless all of the co-tenants otherwise
agree in a record.

(c) This section shall supplement the general partition statute of
this article and, if an action is governed by this section, shall
replace the provisions of such general partition statute that are
inconsistent with this section.

4. Service; notice by posting. (a) This section shall not limit or
affect the method by which service of a complaint in a partition action
may be made.

(b) If the plaintiff in a partition action seeks an order of notice by
publication and the court determines that the property may be heirs
property, the plaintiff, not later than ten days after the court's
determination, shall post and maintain while the action is pending a
conspicuous sign on the property that is the subject of the action. The
sign shall state that the action has commenced and identify the name and
address of the court and the common designation by which the property is
known. The court may require the plaintiff to publish on the sign the
name of the plaintiff and the known defendants.

5. Settlement conference. (a) In any partition action of heirs
property, plaintiffs shall file proof of service within twenty days of
such service, however service is made, and the court shall hold a
mandatory conference within sixty days after the date when a request for
judicial intervention is filed, or on such adjourned date as has been
agreed to by the parties, for the purpose of holding settlement
discussions pertaining to the relative rights and obligations of the
parties with respect to the subject property including, but not limited
to, as set forth in this section.

(b) Upon the filing of a request for judicial intervention, the court
shall promptly send a notice to parties advising them of the time and
place of the settlement conference, the purpose of the conference and
the requirements of this section. The notice shall be in a form
prescribed by the office of court administration, or, at the discretion
of the office of court administration, the administrative judge of the
judicial district in which the action is pending. Plaintiff shall post a
copy of the settlement conference notice in a conspicuous place on the
property within twenty days of the date of the notice.

(c) The settlement conference may be adjourned or reconvened from time
to time as appropriate during the pendency of the partition action. At
any conference held pursuant to this section, the plaintiffs and the
defendants shall appear in person or by counsel, and each party's
representative at the conference shall be fully authorized to dispose of
the entirety or any portion of the case. If the defendant is appearing
pro se, the court shall advise the defendant of the nature of the action
and his or her rights and responsibilities as a defendant.

(d) At the first settlement conference held pursuant to this section,
if the defendant has not filed an answer or made a pre-answer motion to
dismiss, the court shall (i) advise the defendant of the requirement to
answer the complaint, (ii) explain what is required to answer a
complaint in court, (iii) advise that the ability to contest the
partition action and assert defenses may be lost if an answer is not
interposed, (iv) set a deadline for any co-tenants requesting partition
by sale, and (v) provide information about available resources for legal
assistance. A defendant who appears at the settlement conference but who
failed to file a timely answer, pursuant to rule three hundred twenty of
the civil practice law and rules, shall be presumed to have a reasonable
excuse for the default and shall be permitted to serve and file an
answer, without any substantive defenses deemed to have been waived,
within thirty days of initial appearance at the settlement conference.
The default shall be deemed vacated upon service and filing of an
answer.

(e) Both the plaintiffs and defendants shall negotiate in good faith
to reach a mutually agreeable resolution including, but not limited to,
a tenancy in common agreement, a co-tenant buyout and the allocation,
mechanics and financing thereof as provided in subdivision seven of this
section, a partition in kind as provided in subdivisions eight and nine
of this section, an open market sale as provided in subdivision ten of
this section, or any other agreement or loss mitigation that is fair and
reasonable considering the totality of factors listed in paragraph (a)
of subdivision nine of this section.

(f) If the parties do not reach a mutually agreeable resolution, the
referee, judicial hearing officer, or other staff designated by the
court to oversee the settlement conference process shall make a report
of findings of fact, conclusions of law and recommendations for relief
to the court concerning any party's failure to negotiate in good faith
pursuant to paragraph (e) of this subdivision. If the court determines a
plaintiff has failed to negotiate in good faith, the partition action
shall be dismissed.

(g) Any motions submitted by any party to the action may be held in
abeyance while the settlement conference process is ongoing, except for
motions concerning (i) a determination of the percentage interests, if
any, owned by any alleged co-tenant if such interests are in dispute and
(ii) compliance with this rule and its implementing rules including
applications to extend in the interests of justice any deadlines fixed
herein.

(h) In addition to any other qualifications otherwise required, each
commissioner appointed under section nine hundred fifteen of this
article and any officer appointed to conduct a sale shall be
disinterested, impartial and not related to a party to or participant in
the action.

6. Determination of value. (a) If the court determines that the
property that is the subject of a partition action is heirs property,
the court shall determine the fair market value of the heirs property
for purposes of subdivision seven of this section as follows, utilizing
paragraph (d) of this subdivision, unless it has determined that
paragraph (b) or (c) of this subdivision apply.

(b) If all co-tenants have agreed to the value of the property or to
another method of valuation, the court shall adopt such value or the
value produced by the agreed method of valuation.

(c) If the court determines that the evidentiary value of an appraisal
is outweighed by the cost of the appraisal, the court, after an
evidentiary hearing, shall determine the fair market value of the
property and send notice of the value to the parties.

(d) If paragraph (b) or (c) of this subdivision do not apply, the
court shall order an appraisal by a disinterested real estate appraiser
licensed in this state to determine the fair market value of the
property. Any determination of value under paragraph (c), (d), (f) or
(g) of this subdivision shall assume sole ownership of the fee simple
estate. On completion of the appraisal, the appraiser shall file a sworn
or verified appraisal with the court.

(e) Not later than ten days after an appraisal is filed under
paragraph (d) of this subdivision, the court shall send notice to each
party with a known address, stating:

(i) the appraised fair market value of the property plus the allowed
cost of the appraisal;

(ii) that the appraisal is available at the clerk's office; and

(iii) that a party may file with the court an objection to the
appraisal not later than thirty days after the notice is sent, stating
the grounds for the objection.

(f) If an appraisal is filed with the court pursuant to paragraph (d)
of this subdivision, the court shall conduct a hearing to determine the
fair market value of the property not sooner than thirty days after a
copy of the notice of the appraisal is sent to each party under
paragraph (e) of this subdivision, whether or not an objection to the
appraisal is filed under subparagraph (iii) of paragraph (e) of this
subdivision. In addition to the court-ordered appraisal, the court may
consider any other evidence of value offered by a party.

(g) After a hearing under paragraph (f) of this subdivision, but
before considering the merits of the partition action, the court shall
determine the fair market value of the property and send notice to the
parties of the value.

7. Co-tenant buyout. (a) Every co-tenant who requests or joins a
request for partition of heirs property by sale has thereby agreed that
his or her interest may be acquired in accordance herewith at the value
determined under subdivision six of this section by the co-tenants who
have not sought or joined in the request for partition by sale. Upon
determination that the property is heirs property and prior to the
determination of value under subdivision six of this section, the court
shall send notice to all parties identifying the owners of interests
that have sought partition by sale, the percentage interests such owners
allege to hold and of the right of the remaining co-tenants to avert
partition by sale by exercising the right to purchase all of the
interests of the co-tenants who requested partition by sale.

(b) Not later than forty-five days after the notice of the
determination of value under subdivision six of this section is sent and
by the date specified in such notice, any co-tenant, except a co-tenant
that requested partition by sale, may give notice to the court of the
total amount of percentage interests subject to purchase that he or she
elects to buy; provided, however, the court shall make a determination
of each co-tenant's percentage ownership interest in the property prior
to sending notice of the determination of value if such interest is in
dispute and shall consider all facts as determined by the court and
presented by the parties, and all laws and rules that govern the
transfer, succession and acquisition of title through probate, intestacy
or otherwise.

(c) The purchase price for percentage interests shall be the value of
the entire parcel determined under subdivision six of this section
multiplied by the aggregate amount of the percentage interests subject
to purchase.

(d) After expiration of the period in paragraph (b) of this
subdivision, the following rules apply:

(i) If one or more co-tenants have elected in the aggregate to buy at
least the total amount of percentage interests subject to purchase, the
court shall notify all the parties of such fact.

(ii) If the electing co-tenants' offers equal or exceed the amount of
percentage interests subject to purchase, the court shall allocate the
right to buy those interests among the electing co-tenants based on each
electing co-tenant's existing fractional ownership of the entire parcel
divided by the total existing fractional ownership of all co-tenants
electing to buy, reserving priority, first, to electing co-tenants who
acquired the interest from a relative and reside in the property and,
second, to all other electing co-tenants who acquired their interest
from a relative, and send notice to all the parties of the foregoing and
of the price to be paid by each electing co-tenant.

(iii) If co-tenants with the right to elect fail to elect to purchase
the entirety of the interests of the co-tenants whose interests are
subject to purchase, the court shall send notice to all the parties of
such fact and resolve the partition action under paragraphs (a) and (b)
of subdivision eight of this section.

(e) If the court sends notice to the parties under subparagraph (i) or
(ii) of paragraph (d) of this subdivision, the court shall set a date,
not sooner than sixty days after the date the notice was sent, by which
electing co-tenants must pay their apportioned price into the court.
After this date, the following rules apply:

(i) If all electing co-tenants timely pay his or her apportioned price
to the court, the court shall issue an order reallocating all the
interests of the co-tenants and disburse the amounts held by the court
to the persons entitled to them.

(ii) If no electing co-tenant timely pays his or her apportioned
price, the court shall resolve the partition action under paragraphs (a)
and (b) of subdivision eight of this section as if the interests of the
co-tenants that requested partition by sale were not purchased.

(iii) If one or more, but not all, of the electing co-tenants fail to
pay their apportioned price on time, the court, on motion, shall give
notice to the electing co-tenants that paid their apportioned price of
percentage of the unpurchased interests remaining and the price for all
such interests.

(f) Not later than twenty days after the court gives notice pursuant
to subparagraph (iii) of paragraph (e) of this subdivision, any
co-tenant that paid his or her apportioned price may elect to purchase
all of the remaining interest by paying the entire price to the court.
After the twenty day period, the following rules shall apply:

(i) If only one co-tenant pays the entire price for the remaining
interest, the court shall issue an order reallocating the remaining
interest to such co-tenant. The court shall issue promptly an order
reallocating the interests of all of the co-tenants and disburse the
amounts held by the court to the persons entitled to such amounts.

(ii) If no co-tenant pays the entire price for the remaining interest,
the court shall resolve the partition action under paragraphs (a) and
(b) of subdivision eight of this section as if the interests of the
co-tenants that requested partition by sale were not purchased.

(iii) If more than one co-tenant pays the entire price for the
remaining interest, the court shall reapportion those remaining
interests among those paying co-tenants, based on each paying
co-tenant's original fractional ownership of the entire parcel divided
by the total original fractional ownership of all co-tenants that paid
the entire price for the remaining interest. The court shall issue
promptly an order reallocating all of the co-tenants' interests,
disburse the amounts held by the court to the persons entitled to such
amounts, and promptly refund any excess payment held by the court.

(g) Not later than forty-five days after the court sends notice to the
parties pursuant to paragraph (a) of this subdivision, any co-tenant
entitled to buy an interest under this subdivision may request the court
to authorize the sale as part of the pending action of the interests of
co-tenants named as defendants and served with the complaint but that
did not appear in the action.

(h) If the court receives a timely request under paragraph (g) of this
subdivision, the court, after a hearing, may deny the request or
authorize the requested additional sale on such terms as the court
determines are fair and reasonable, subject to the following
limitations:

(i) a sale authorized under this subdivision may occur only after the
purchase prices for all interests subject to sale under paragraphs (a),
(b), (c), (d), (e) and (f) of this subdivision have been paid to the
court and such interests have been reallocated among the co-tenants as
provided in such paragraphs; and

(ii) the purchase price for the interest of a non-appearing co-tenant
is based on the court's determination of value under subdivision six of
this section.

8. Partition alternatives. (a) If all the interests of all co-tenants
that requested partition by sale are not purchased by other co-tenants
pursuant to subdivision seven of this section, or if after conclusion of
the buyout under subdivision seven of this section, a co-tenant remains
that has requested partition in kind, the court shall order partition in
kind unless the court, after consideration of the factors listed in
subdivision nine of this section, finds that partition in kind will
result in great manifest prejudice to the co-tenants as a group. In
considering whether to order partition in kind, the court shall approve
a request by two or more parties to have their individual interests
aggregated.

(b) If the court does not order partition in kind under paragraph (a)
of this subdivision, the court shall order partition by sale pursuant to
subdivision ten of this section provided that, if no co-tenant timely
requested partition by sale, the court shall dismiss the action.

(c) If the court orders partition in kind pursuant to paragraph (a) of
this subdivision, the court may require that one or more co-tenants pay
one or more other co-tenants amounts so that the payments, taken
together with the value of the in kind distributions to the co-tenants,
will make the partition in kind just and proportionate in value to the
fractional interests held.

(d) If the court orders partition in kind, the court shall allocate to
the co-tenants that are unknown, cannot be located, or the subject of a
default judgment, if the co-tenants interests were not bought out
pursuant to subdivision seven of this section, a part of the property
representing the combined interests of such co-tenants as determined by
the court and such part of the property shall remain undivided.

9. Considerations for partition in kind. (a) In determining under
subdivision eight of this section whether partition in kind would result
in great manifest prejudice to the co-tenants as a group, the court
shall consider the following:

(i) whether the heirs property practicably can be divided among the
co-tenants;

(ii) whether partition in kind would apportion the property in such a
way that the aggregate fair market value of the parcels resulting from
the division would be materially less than the amount reasonably
expected to be realized if the property were sold as a whole, taking
into account the conditions under which a court-ordered sale likely
would occur;

(iii) evidence of the collective duration of ownership or possession
of the property by a co-tenant and one or more predecessors in title or
predecessors in possession to the co-tenant who are or were relatives of
the co-tenant or each other;

(iv) a co-tenant's sentimental attachment to the property, including
any attachment arising because the property has ancestral or other
unique or special value to the co-tenant;

(v) the lawful use being made of the property by a resident or other
co-tenant and the degree to which any such co-tenant would be harmed if
the co-tenant could not continue the same use of the property;

(vi) the degree to which the co-tenants have contributed their pro
rata share of the property taxes, insurance, and other expenses
associated with maintaining ownership of the property or have
contributed to the physical improvement, maintenance, or upkeep of the
property;

(vii) the price, terms and conditions of the acquisition of the
co-tenant's interest in the property if such co-tenant is not a relative
of the person from whom it acquired his or her interest; and

(viii) any other relevant factor.

(b) The court shall not consider any one factor in paragraph (a) of
this subdivision to be dispositive without weighing the totality of all
relevant factors and circumstances.

10. Open-market sale, sealed bids, or auction. (a) If the court orders
a sale of heirs property, notwithstanding section two hundred thirty-one
of this chapter, such sale shall be an open-market sale under this
subdivision unless the court finds that a sale by sealed bids or an
auction would be more economically advantageous and in the best interest
of the co-tenants as a group.

(b) If the court orders an open-market sale and the parties, not later
than ten days after the entry of the order, agree on a real estate
broker licensed in this state to offer the property for sale, the court
shall appoint the broker and establish a reasonable commission. If the
parties do not agree on a broker, the court shall appoint a
disinterested real estate broker licensed in this state to offer the
property for sale and shall establish a reasonable commission. The
broker shall offer the property for sale in a commercially reasonable
manner at a price no lower than the determination of value and on the
terms and conditions established by the court.

(c) If the broker appointed under paragraph (b) of this subdivision
obtains within a reasonable time an offer to purchase the property for
at least the determination of value:

(i) the broker shall comply with the reporting requirements in
subdivision eleven of this section; and

(ii) the sale may be completed in accordance with the laws of this
state other than this section.

(d) If the broker appointed under paragraph (b) of this subdivision
does not obtain within a reasonable time an offer to purchase the
property for at least the determination of value, the court, after a
hearing, may:

(i) order that the property continue to be offered for an additional
time, by the same or a substitute broker, in accordance with paragraph
(b) of this subdivision; or

(ii) if it determines that doing so would not be in the best interests
of the parties, approve the highest outstanding offer.

(e) If after the court has appointed a substitute broker and there are
no reasonable offers for the property, the court may order the property
be sold by sealed bids or an auction and, the court shall set terms and
conditions of the sale. If the court orders an auction, the auction
shall be conducted in accordance with section two hundred thirty-one of
this chapter.

(f) If a purchaser is entitled to a share of the proceeds of the sale,
the purchaser is entitled to a credit against the price in an amount
equal to the purchaser's share of the net proceeds.

11. Report of open-market sale. (a) Unless required to do so within a
shorter time by this article, a broker appointed under paragraph (b) of
subdivision ten of this section to offer heirs property for open-market
sale shall file a report with the court not later than seven days after
receiving an offer to purchase the property for at least the value
determined under subdivision six or ten of this section.

(b) The report required by paragraph (a) of this subdivision shall
contain the following information:

(i) a description of the property to be sold to each buyer;

(ii) the name of each buyer;

(iii) the proposed purchase price;

(iv) the terms and conditions of the proposed sale, including the
terms of any owner financing;

(v) the amounts to be paid to lienholders;

(vi) a statement of contractual or other arrangements or conditions of
the broker's commission; and

(vii) other material facts relevant to the sale.