There are times when co-owners of Hawaii real property are engaged in a dispute and no longer wish to continue co-ownership of such property, or one party is no longer making payments on the mortgage and the paying party wants to remove the non-paying party from title.
The question that usually follows is what are the co-owners’ options if they wish to sever such relationship (other ways to phrase this include, “How can I kick off someone from title to the Hawaii real estate” and “How do I remove a co-owner”).
In the event that there is no prior written agreement among the co-owners setting forth each owner’s obligations (such as a co-tenancy agreement) and the procedures for resolving disputes, the co-owners are basically left with two options:
- Work out some agreement to resolve the dispute; or
- Terminate the co-owner relationship through a court supervised partition action
The co-owners should first try to resolve their differences and come to some compromise. By reaching such a compromise, the co-owners would not need a partition action which can be a very costly process. However, if seeking such an agreement proves to be a dead end, then a Hawaii partition action is necessary.
In a partition action, one or more of the owners files a lawsuit against the remaining owner(s). The filing party is also required to join as a party every person having or claiming to have any legal or equitable right, title, or interest in the property described in the lawsuit.
Once a partition action is filed, the court has the jurisdiction to partition the real property by (1) partition in kind or (2) partition by sale. A “partition in kind” occurs when the court physically divides the property and each owner ends up controlling an individual portion of the property.
A “partition by sale” is accomplished by selling the entire property at a public auction and dividing the proceeds among the owners according to their respective interests in the property. The courts tend to favor a partition in kind first, but if such division is not feasible, then the court will proceed with a partition by sale.
As you can see, terminating a co-ownership relationship of Hawaii real property is not that simple and can be costly. Money is best spent on having us document the original agreement between the co-owners.
However, if that is already too late, contact us and, as your attorneys, we can guide you through this difficult process.
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