Category: Real Estate Law

If your co‑owner won’t sell a New York property, learn how a partition action works, when the Uniform Partition of Heirs Property Act (RPAPL § 993) applies, and why you need a litigation firm with real estate experience—not just a closing attorney. Includes FAQs.

What to Do When a Co‑Owner Won’t Sell a House in New York: Partition Actions (and When UPHPA Applies)

In New York, a co‑owner cannot be forced to remain a co‑owner indefinitely; a partition action can end co‑ownership. If your sibling, friend, investor, or other co‑owner refuses to sell, you can file a partition action in New York Supreme Court to either divide or—far more commonly—sell the property and distribute the proceeds.

When co‑ownership involves heirs who inherited the home, New York’s Uniform Partition of Heirs Property Act (UPHPA), RPAPL § 993 (effective 2019), adds protections like a mandatory settlement conference, an independent appraisal, a buyout option for family co‑owners, and, if a sale is necessary, an open‑market listing with a court‑selected broker—rather than a courthouse auction.

Why Your Choice of Attorney Matters

A partition is litigation, not a closing. Most “real estate attorneys” focus on transactions and do not litigate; meanwhile, some litigators lack fluency with real‑estate‑specific issues like standard contract terms, title problems, valuation, credits/accountings, and standard broker agreements. Your best outcome comes from a civil litigation firm that also has deep real estate experience.

What Is a Partition Action in New York?

A partition action is a lawsuit that any joint tenant or tenant in common can bring to terminate co‑ownership. The court can technically order partition in kind (physical division) but in most cases, if you own a house on one lot, such a division would not be possible. Therefore, in these cases, the court will ultimately order a sale with proceeds divided according to each owner’s share. In residential cases, sale is the norm. The case is filed in New York Supreme Court in the county where the property sits. Courts commonly appoint a court-ordered referee to determine shares, lien issues, oversee the sale and the accounting.

Two Tracks: Standard Partition vs. Heirs’ Property (UPHPA)

Standard Partition: If the parties cannot agree, courts frequently direct a judicial sale with a court‑appointed referee. Sales may be by auction or private listing depending on the order.

Heirs’ Property—UPHPA (RPAPL § 993): If the property is heirs property, the court must hold a settlement conference, set fair market value via independent appraisal, provide a family buyout option, and—if selling—use a broker for an open‑market sale.

Why a Litigation + Real Estate Firm Is Even More Valuable: They Can Prepare the Sale and Perform the Closing

Another major advantage of hiring a firm that handles both litigation and real estate transactions is that the same team that litigates the partition can also prepare the parties and property for the sale, coordinate with the referee and broker, interface with appraisers, agents, title and escrow, draft or review the contract of sale, resolve title issues that surfaced during litigation, conduct the closing, and ensure the distribution of proceeds reflects court‑approved credits and adjustments.

Because partition litigation often culminates in a forced sale (standard RPAPL Article 9) or an open‑market sale with a broker (UPHPA), one integrated team reduces handoffs, delays, and costly miscommunication.

The Step‑by‑Step: How a New York Partition Typically Proceeds

1) File & serve the complaint (NY Supreme Court).
2) Response and early case management (including UPHPA settlement conference where applicable).
3) Referee appointment (to compute shares/credits and help manage sale logistics).
4) Valuation & accountings (credits for taxes, mortgage, necessary repairs, etc.).
5) Disposition: Standard partition—interlocutory judgment and sale; Heirs’ property—appraisal → buyout window → if no buyout, open‑market sale with court‑selected broker.
6) Distribution of proceeds per shares, with equity adjustments.

Frequently Asked Questions (FAQ)

• Can I force a sale if my co‑owner refuses? Yes—partition allows it when physical division would cause prejudice or may be impossible.
• Does it matter if my co‑owner is a sibling, friend, investor, or an heir? Yes—UPHPA adds appraisal, buyout, and brokered sale steps for heirs’ property.
• Will the court order a sale right away? No—rights/shares and, in heirs’ cases, conference and buyout come first.
• Does the court have to sell by auction? Not in UPHPA cases—courts favor open‑market listing via a broker. Note that in most cases, the parties will agree to a settlement whereby the property is purchased by one party or sold on the open market to avoid the risk of a low price paid at a court-ordered auction.
• How are proceeds divided? By ownership shares with equitable credits (taxes, mortgage, repairs, use & occupancy, liens).
• How long does a partition take? It really depends on how busy the court is in a specific jurisdiction and/or the willingness of the parties to settle. While the case can settle at any point, if the case must go to trial, it can often take 2-3 years or more to resolve. 

One‑Firm, End‑to‑End: From Lawsuit → Sale → Closing

Because partition cases end in disposition—by auction, private sale, negotiated buyout, or a UPHPA‑mandated open‑market sale with a court‑selected broker—our integrated litigation + real estate team seamlessly prepares the property for sale and conducts the closing. That continuity prevents disconnects between courtroom outcomes and closing‑table execution, protecting your equity and timeline.

Explore Our Practice Areas

Learn more about how we can help: Litigation  |  Real Estate  |  

Schedule a confidential consultation with our Litigation + Real Estate team to map your options (buyout, settlement, or sale) and—when the time comes—handle the contract and the closing, all under one roof. Contact us

When a New York religious corporation plans to sell real estate as part of a corporate dissolution the process is not a standard real‑estate closing. 

When a sale coincides with dissolution, the wind‑up of the religious corporation proceeds in Supreme Court (with required publication/notice and a verified petition) and is not an AG‑approval process (as in most standard religious corporation sales). Practically, the court supervises the wind‑up: debts and expenses are paid, and the court typically directs any surplus proceeds to appropriate religious/charitable purposes consistent with the organization’s mission. 

What we’ll need from you to start the dissolution + sale application:

• Comprehensive documentation (we provide a checklist): corporate records; deed/title; independent appraisal; mortgages/payoffs; financials; contracts; and a clear plan for proceeds. The Charities Bureau’s publications stress complete submissions and truly independent appraisals.
• Verification of the dissolution petition by trustees who still reside in the county of incorporation; if none remain, verification by a majority of members residing in that county (names/addresses included in the papers). (Religious‑corporation petitions are filed as verified pleadings in practice.)
• Publication/notice before the court application; proof of publication is included with the filing. 

Timeline

Court calendars, notice/publication lead time, and any supplemental orders can extend the schedule; plan for additional lead time beyond the sale approval cycle.

The Process at a Glance

1. Prepare the record. Corporate documents (charter/bylaws/resolutions/trustees), deed/title, independent appraisal, mortgages/payoffs, financials, and a plan for proceeds.
2. Obtain internal authority. Properly noticed meetings; resolutions authorizing the sale and (if applicable) dissolution; identify signatories.
3. File the petition(s).
   • Dissolution + Sale: Proceed in Supreme Court with verified pleadings, notice/publication, and a proposed plan for post‑closing surplus proceeds. 
4. Respond promptly. Expect follow‑ups; complete responses keep the matter moving.
5. Approval, closing, and wind‑up. Close per the court order. The court supervises payment of liabilities and directs surplus to religious/charitable purposes. 

Why You Don’t Just Need a Real Estate Lawyer—You Need a Court‑Ready Team

For religious‑corporation transactions especially those involving dissolution or any sale that proceeds through the Supreme Court, the linchpin is obtaining a court order on a verified petition with proper notice/publication and a record that satisfies the court’s charitable‑asset standards. That requires more than contract drafting and title work; it requires lawyers who are comfortable building a court‑ready record, appearing before the judge, and addressing objections or supplemental requests on short notice.

Why a firm like ours is built for this:

• Real Estate Law: We quarterback the contract, title, appraisal, and closing mechanics so the transaction stands on solid market and documentary footing.
• Religious Corporations Law: We structure the publication, verified petition, resolutions, signatory/authority proofs, and plan for the use of proceeds so the court (and, in AG‑routed sales, the Charities Bureau) can approve cleanly.
• Litigation/Court Practice: We handle motion practice, respond to court directives or third‑party questions, and appear in Supreme Court to secure the order—capabilities that many purely transactional real estate attorneys do not routinely provide.

Put simply, a court ordered religious corporate dissolution is not a formality. It’s the product of a well‑prepared record and effective courtroom advocacy. Most “real estate only” practices are not set up for litigation or regular court appearances. Our team integrates deal execution with court procedure, so you don’t have to choose between closing competence and courtroom readiness.

FAQs

Do all New York religious corporations need AG approval to sell property?
Not always. Most may obtain AG approval or a Supreme Court order; some denominations are exempt from AG submission and must seek court approval only.

If we’re dissolving, do we still go through the AG?
No. Dissolution is a court‑supervised process (notice/publication + verified petition). The court oversees liabilities and directs any surplus to appropriate religious/charitable purposes. 

How long does approval take?
Plan on 90–120 days for a well‑prepared sale submission; dissolution scheduling depends on notice, court calendars, and any supplemental orders.

Can we close before approval?
No. You need a court order before closing on a religious‑corporation property sale.

What appraisal is acceptable?
An independent appraisal by a qualified, unrelated appraiser; buyer or lender appraisals are not acceptable.

Who verifies the dissolution petition?
Typically trustees residing in the county of incorporation; if none remain, a majority of county‑resident members. Include names/addresses in the verified petition. (Religious‑corporation filings are submitted as verified pleadings.)

Ready to move forward?

Send us your completed checklist and the names/addresses of trustees (or county‑resident members) who can verify the petition. We’ll circulate the retainer, draft the verified petition, coordinate publication, and manage the court filingthrough approval and closing.

This post provides general information and is not legal advice. For guidance tailored to your facts, please contact our team.

Why the Process Matters — and Why Experience Is Critical

Selling property owned by a New York religious corporation is not a typical real estate deal. New York requires a formal approval process designed to protect charitable assets and ensure sale proceeds are used in line with the organization’s mission. In practice, that means preparing a petition with corporate, property, and financial documentation and submitting it for review under the Religious Corporations Law (RCL) § 12 and related Not‑for‑Profit Corporation Law (NPCL) procedures.

Approval Pathways: Attorney General or Court (and sometimes both). Under RCL § 12, a religious corporation may not sell, mortgage, or lease real property for a term exceeding five years without first obtaining approval from either the New York State Attorney General (via NPCL § 511‑a) or the Supreme Court (via NPCL § 511). The Charities Bureau’s guidance also explains that the AG can require court review even when AG approval is initially sought, and, conversely, petitions filed in court typically proceed on notice to the AG. In complex or sensitive matters, both agencies may be engaged—e.g., AG review followed by a court order to finalize the approval path. 

Because of the scrutiny involved, the process is document‑heavy, fact‑specific, and commonly takes 90–120+ days from petition submission to final approval—longer if items are incomplete or additional information is needed by the assigned Assistant Attorney General.

The AG/Court Approval Process in a Nutshell

1) Prepare the record. Gather corporate documents (charter/bylaws/resolutions/trustees), property materials (deed, independent appraisal, title, mortgage statements), financials, and a clear plan for use of proceeds. The AG’s guides detail required petition contents and specific guidance which emphasizes the independence and quality of the appraisal. 

2) Obtain internal authority. Hold properly noticed meetings, adopt resolutions, and identify signatories per governing documents.

3) Submit the petition. File with the Attorney General or petition the Supreme Court under; in either path, the standards focus on fairness and mission consistency. The AG can also direct that a matter proceed in court. 

4) Respond promptly during review. Expect follow‑up questions or supplemental requests; complete responses keep the file moving.

5) Receive approval and close. After AG approval or a court order, close in accordance with any conditions (e.g., escrow or reporting).

Why You Need an Experienced Attorney—Not “Just” a Real Estate Lawyer

Although this transaction involves real estate, it is fundamentally a charities‑law approval governed by RCL § 12 with NPCL § 511/§ 511‑a overlay. Counsel who routinely handles Charities Bureau and Religious Corporation matters can prevent avoidable delays, re‑submissions, or denials tied to missing corporate approvals, appraisal defects, or mis‑sequenced filings. An experienced practitioner knows when to route through the AG versus the Court, how to prepare draft papers for pre‑review, and how to structure the record so the approval issues cleanly. [ 

Quick FAQ

How long does approval take?
Plan on at least 90–120 days from submission, depending on completeness, complexity, and agency workload.

Can we close before approval?
No. Closing must wait until you have either AG approval or a court order under the statute.

What appraisal will the AG accept?
An independent appraisal by a qualified appraiser; appraisals from a buyer or lender are not acceptable. The AG provides specific guidance on the content of appraisals.

How will the AG view proceeds?
They must be used for mission‑consistent purposes (e.g., new property, renovations, reserves, programs) and may be conditioned (require escrow, reporting) to safeguard charitable assets.

Bottom Line

Start early, assemble a complete record, and engage experienced Article 10/Charities Bureau counsel to drive the petition and coordinate with the AG (and, where appropriate, the court). That’s the surest route to a timely, durable approval—and a smooth closing., don’t rely solely on the shorthand in a deal sheet. Terms like “as is” and “as is, where is” may seem similar, but they carry very different legal weight. Always consult with your attorney to ensure the contract language reflects the true intent of the deal—and protects your interests accordingly.

If you’ve ever reviewed a real estate deal sheet or listing in New York, you’ve likely come across the phrase “property to be sold in as is condition.” But what does that actually mean—and how does it differ from the more emphatic “as is, where is” language often found in bank-owned or REO contracts?

The short answer: not all “as is” clauses are created equal. And in New York, the difference can have real consequences for buyers and sellers alike.

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⚖️ Why This Gets Confusing

There’s no single, universally accepted definition of “as is” in real estate. The meaning often depends on the context, the parties involved, and—most importantly—how the attorney drafts the contract.

This blog aims to simplify the confusion by focusing on how these terms are typically interpreted when a New York attorney prepares a contract based on a deal sheet from a real estate agent.

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🧾 “As Is” in a Standard Residential Deal

When a real estate agent notes that a property is being sold “as is,” many buyers assume that means “take it or leave it”—no repairs, no guarantees. But in New York, that’s not always the case.

Most residential transactions use a standard Blumberg form contract, which includes basic representationsby the seller, even when the deal is described as “as is.” These typically include:

• Plumbing, heating, and electrical systems will be in working order at closing
• Appliances will be in working order
• The roof will be free of leaks

So, when a New York attorney sees “as is” in a deal sheet, they often interpret it to mean: the buyer accepts the property in its current cosmetic condition, but the seller is still responsible for ensuring that essential systems are functional at closing.

This interpretation reflects a balance between buyer expectations and seller obligations in a typical arm’s-length residential transaction.

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🏚️ “As Is, Where Is” in REO and Bank-Owned Sales

In contrast, “as is, where is” is a much more aggressive disclaimer—commonly used in bank-owned (REO) sales and foreclosure transactions. This language is intended to make it crystal clear that:

• The seller makes no representations or warranties whatsoever
• The buyer is purchasing the property with all faults, visible or hidden
• The seller will not make any repairs or provide any assurances about the condition of the property

In these contracts, the buyer assumes full responsibility for investigating the property’s condition and accepts the risk of defects—structural, mechanical, environmental, or otherwise.

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🧭 Why the Distinction Matters

Understanding the difference between “as is” and “as is, where is” is critical because it speaks directly to the parties’ expectations and legal obligations. A buyer who assumes “as is” means “no repairs” may be surprised to learn they’re still entitled to working systems under the standard contract. Conversely, a buyer entering into an “as is, where is” deal without due diligence could find themselves stuck with costly repairs and no legal recourse.

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📝 Final Thoughts

If you’re a buyer or seller in New York, don’t rely solely on the shorthand in a deal sheet. Terms like “as is” and “as is, where is” may seem similar, but they carry very different legal weight. Always consult with your attorney to ensure the contract language reflects the true intent of the deal—and protects your interests accordingly.

When buying a home, contingencies are your safety net. Two of the most important—and often misunderstood—are the appraisal contingency and the mortgage contingency. While they may sound similar, they protect buyers in very different ways. Let’s break them down.

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📏 What Is an Appraisal Contingency?

An appraisal contingency protects you if the home’s appraised value comes in lower than the agreed purchase price. Since lenders won’t finance more than a property is worth, this clause gives you options:

• Renegotiate the price
• Walk away with your deposit intact

Without this protection, you could be forced to cover the difference out of pocket—or risk losing your deposit.

💡 Bonus Insight: If the home appraises for more than the purchase price, that’s great news for the buyer. The seller cannot ask for additional money—the agreed price stands, and you’ve essentially gained instant equity.

🧠 A Matter of Fairness: Some buyers assume that if the appraisal comes in low, they can automatically cancel the contract. But think about it this way: if a low appraisal gave buyers the right to walk away, wouldn’t it be fair for sellers to demand a higher price when the appraisal comes in high? Contracts don’t work that way. The agreed price is binding for both parties—unless specific contingencies are negotiated. The appraisal contingency is not a default right; it must be included in the contract.

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💸 What Is a Mortgage Contingency?

A mortgage contingency (also called a financing contingency) protects you if you’re unable to secure a loan. Even if the appraisal is fine, your financing could fall through due to income, credit, or other factors. This clause allows you to cancel the contract and recover your deposit if your loan isn’t approved by a set deadline.

🔗 How the Appraisal Fits In: The appraisal is one of several factors a lender uses to determine whether to approve your mortgage. It affects the loan-to-value ratio (LTV)—the percentage of the home’s value the lender is willing to finance. If the appraisal comes in lower than the contract price, but still high enough for the lender to issue the full loan amount without requiring additional cash from the buyer, the low appraisal may not affect your bottom-line closing costs and the buyer can still buy the property without any changes to their downpayment. 

However, if the appraisal is too low, the lender may reduce the loan amount, and the buyer must make up the difference in cash. This is where the appraisal contingency becomes critical—it allows the buyer to renegotiate or exit the deal if the numbers no longer work.

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⚠️ Seller’s Market Reality

In a competitive seller’s market—especially when buyers are offering above asking price—it’s much harder to get a seller to agree to an appraisal contingency. Sellers know they have multiple offers and don’t want to risk a deal falling through due to a low appraisal. As a result, they often ask buyers to waive the appraisal contingency entirely, meaning the buyer must close even if the appraised value is lower than the purchase price.

💸 Out-of-Pocket Risk: When waiving the appraisal contingency, buyers should consult their mortgage lender and attorney. If the appraisal comes in too low, the lender may reduce the loan amount—and the buyer must cover the shortfall with additional cash. Worse, if the appraisal is significantly below the contract price, the buyer may no longer qualify for the loan at all.

📉 Appraisal Floor Protection: To mitigate this risk, buyers can negotiate an appraisal floor—a clause that allows them to cancel the contract if the appraisal comes in below a specific threshold. This provides a middle ground: the seller avoids a broad contingency, and the buyer avoids being locked into a deal they can’t finance.

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🔍 Common Confusion

FHA and VA loans include an amendatory clause, which ensures the buyer isn’t obligated to proceed if the appraisal is lower than the purchase price. Many people confuse this with the appraisal contingency found in conventional loans. While they serve similar purposes, the amendatory clause is a built-in federal protection specific to FHA and VA financing.

🧩 Even the Pros Get It Wrong: It’s surprisingly common for even seasoned real estate professionals—agents, attorneys, and lenders alike—to conflate these two contingencies. The confusion often stems from overlapping timelines and similar triggers, but the protections they offer are distinct and should be clearly understood by all parties involved.

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🔍 Key Differences at a Glance

Feature	Appraisal Contingency	Mortgage Contingency
Focus	Property value	Buyer’s ability to get a loan
Trigger	Low appraisal	Loan denial or failure to fund
Buyer protection	Avoid overpaying	Avoid being locked into purchase
Common outcome	Renegotiation or contract exit	Contract exit

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🧠 Ideally You Should Have Both— But Often May Not Get Both

Ideally, having both an appraisal contingency and a mortgage contingency offers the strongest protection for buyers. Together, they ensure you’re not paying over the fair market value for the property and that you’re not locked into a contract if your financing falls through.

However, in a competitive seller’s market—it’s rare for sellers to agree to an appraisal contingency. When multiple offers are on the table, sellers tend to favor contracts with fewer conditions and less risk of delay or cancellation. As a result, buyers often waive the appraisal contingency to make their offer more attractive, particularly when bidding above asking price. 

As the market cools and shifts toward buyers, appraisal contingencies may become more negotiable again—especially in conventional loans. In a less competitive environment, sellers may be more willing to accept this added layer of protection for buyers.

That said, the mortgage contingency remains a critical safeguard and is still commonly accepted. It protects you if your financing falls through for reasons unrelated to the property’s value, such as changes in employment, credit issues, or lender underwriting decisions.

Understanding the role and limitations of each contingency—and how they’re viewed in your local market—is essential to making informed, strategic decisions.

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Need help reviewing or negotiating contingency clauses for your next deal? I can help tailor language to protect your interests while keeping your offer competitive—just let me know.

In this episode, host Evantz Saint-Gerard interviews Peter J. Goodman, Esq about the changes in property disclosure laws. They discuss the Property Condition Disclosure Act and the new property condition disclosure statement. They explain who the law applies to and the reasons behind its implementation. They also cover the seller’s obligations, liability, and best practices for sellers and buyers. The importance of hiring a real estate attorney and the ability to negotiate contracts with disclosures are emphasized. The episode concludes with information on exclusions from the property condition disclosure, the effective date, and contact information for further inquiries.

In this episode, Evantz Saint-Gerard and Peter J. Goodman discuss the ins and outs of real estate joint ventures. They cover topics such as the definition of a joint venture, the different legal structures available, the legal requirements, financial obligations, dispute resolution mechanisms, exit strategies, risk management, and future trends in the industry. The conversation emphasizes the importance of seeking professional help and creating comprehensive agreements to avoid potential pitfalls and disputes. Overall, the episode provides valuable insights for anyone considering entering into a real estate joint venture.

Secure Your Investment with Expertise ?⚖️ Contact Peter J. Goodman, Esq. at Berger, Fischoff, Shumer, Wexler & Goodman, LLP for unparalleled legal guidance. ? Visit www.heathb127.sg-host.com or call us at 718-934-8811 | 516-747-1136. Your property deserves the best protection!

This conversation discusses the legal aspects and guidance on distressed properties, specifically short sales and foreclosures. The speakers emphasize the importance of seeking help and removing shame when facing financial difficulties. They highlight the need to listen to professionals and follow their advice. Planning and having a backup plan are crucial when selling a distressed property. The short sale process is explained, including considerations for properties with tenants. Dealing with difficult tenants is also addressed. The conversation concludes with a reminder that there is always a way out and contact information for further assistance.

Secure Your Investment with Expertise ?⚖️ Contact Peter J. Goodman, Esq. at Berger, Fischoff, Shumer, Wexler & Goodman, LLP for unparalleled legal guidance. ? Visit www.heathb127.sg-host.com or call us at 718-934-8811 | 516-747-1136. Your property deserves the best protection!

In this conversation, Evan St. Gerard and Peter Goodman discuss how to protect your real estate investment. They cover the importance of title insurance, common misconceptions, the need for professional advice, the role of a real estate attorney, building the right team, negotiating and timing in real estate deals, choosing the right realtor, and the importance of prevention and knowledge in real estate transactions. They also provide words of encouragement for those considering buying and selling real estate. 

Secure Your Investment with Expertise ?⚖️ Contact Peter J. Goodman, Esq. at Berger, Fischoff, Shumer, Wexler & Goodman, LLP for unparalleled legal guidance. ? Visit www.heathb127.sg-host.com or call us at 718-934-8811 | 516-747-1136. Your property deserves the best protection!