Who Decides What Remedy is Appropriate in a Partition Action – Sale of The Entire Property or Buyout of One Owner’s Interest?

In New Jersey, when two or more people own real property together and one or more no longer want to be a co-owner, they can file a complaint and seek to “partition” the property. Note  this remedy is not available when the property is owned by a married couple as tenants in the entirety.  A partition action is commenced by filing a lawsuit in the County where the property is located requesting a court order to partition the property.  Recently, the New Jersey Appellate Division rendered a decision where the Court allowed the defendant to buyout the plaintiff’s interest in the subject property even though the plaintiff wanted the property sold. Shurina v. Shurina, No. A-0458-24 (App. Div. Nov. 14, 2025).

The remedy of partition is set forth in N.J.S.A. 2A:56-2 which states “[t]he superior court may, in an action for the partition of real estate, direct the sale thereof if it appears that a partition thereof cannot be made without great prejudice to the owners, or persons interested therein.”  The remedy of partition is referred to as an “equitable remedy” which means courts have discretion when determining how to partition the property with the available remedies being distinguished by their flexibility, unlimited variety, and adaptability to circumstances. What happens when one party wants the entire property sold and the other just wants to buyout the interest of the disgruntled owner? Shurina answers the question.

In Shurina, two siblings purchased a seasonal bungalow as a residence for their families. As time when on, they encountered problems and one sibling filed a lawsuit requesting a division of the property (partition) “based on equitable contribution or, if the court sees fit, a partition sale of the premises.”  Although the Court does have the power to divide a property into parcels with each owner getting part of the property, that generally is not available for single family homes.

The case took an unusual turn when the defendant did not timely file an answer and was deemed to be in default.  For purposes of this article, we are focusing on the remedy available to the parties – total sale of the property or a buyout of the one sibling’s interest. The defendant did not want to have her interest purchased by her brother – she wanted the entire property sold and the proceeds divided between them.  The plaintiff did not want the property sold but wanted the Court to determine the value of the property and allow him to buyout his sister for 50% of the appraised value. The trial court ordered the buyout remedy and the sister appealed the decision arguing New Jersey law did not allow for a buyout remedy.

The Appellate Division disagreed and held:

We reject defendant’s core contention that N.J.S.A. 2A:56-2 solely permits a partition through sale of the property.  As we determined, the statute is permissive rather than mandatory.  The method of partition is left to the trial court’s discretion in order to reach the most equitable allocation.  See Newman, 70 N.J. at 263.  We see no abuse of discretion or arbitrariness by the trial court utilizing a buyout as the methodology of partition rather than a sale, nor does the record show any great prejudice to defendant.

In addition, the relief in plaintiff’s complaint requested “partition.” As we previously determined, the trial court has discretion over the methodology of the partition.  Therefore, we conclude by requesting “partition,” plaintiff’s complaint adequately provided defendant with notice of plaintiff’s requested buyout relief.

The Shurina decision reaffirms that the Court has substantial discretion in deciding whether a property should be sold or whether one party should have his or her interest purchased by the other owner. Often, the buyout price is determined by appraisal testimony.  In Shurina, the plaintiff’s appraisal expert testified before the Court and the Court found the testimony to be credible. After finding the property to be worth $100,000, the Court ordered the brother to pay his sister $50,000 for her interest in the property.

Partition actions are often filled with emotion, especially when family members co-own real estate. Also, if a buyout option is granted, the purchase price will not be determined by the market through a listing, but through a battle of the appraisers. It is crucial to understand the process and available options for resolving the dispute so the legal fees and expert costs do not consume the equity in the property.  An experienced partition lawyer can help guide you through the process and if the matter cannot be settled, try the case.  Stark & Stark’s property litigation team has experience in partition and property valuation litigation and is available to help you protect your rights.