Q. My fiancé and I share a co-op, and we are not getting along. I want out, but he doesn’t. The co-op is in both our names. So what would happen? Do we have to sell and vacate? Truth be told, he no longer wants to be with me. I want to sell because if I can’t have it; I don’t want him to have it.
—Fiancee Uncertain Over Property
A. “A person holding and in possession of real property as a joint tenant or a tenant in common may commence an action seeking the court ordered partition and public sale of the property pursuant to NY RPAPL Section 901(1),” says Leni Morrison Cummins, an attorney with the New York office of Cozen O’Connor. “Even though cooperative shares are not technically real property (but rather personal property), case law allows for the application of this section to cooperative shares. Through an action for partition, the writer will be able to ask a court to order a sale of the jointly owned cooperative apartment and equal division of the net proceeds of the sale.
“There is some precedent that could give the writer’s fiancé the ability to make a request upon the court to allow him an option to purchase the apartment before the unit is put up for public auction. However, that precedent was limited to a situation where one of the owners was the sole resident of the apartment. Therefore, if you want to try to prevent this outcome, you should not vacate the apartment prior to commencing an action for partition. Note that some cooperative bylaws or proprietary leases restrict partition, and many maintain their right to approve a sale even upon partition. So before embarking on this path, the writer should review the cooperative’s governing documents.
“Because the writer does likely have a clear path to achieving her desired result through judicial intervention, it would be wise for her to first approach her fiancé and explain her right to seek partition and request that they jointly agree to sell the apartment to a bona fide third-party purchaser, rather than endure the court proceeding and additional costs and expenses that will necessarily be incurred. If he agrees, they could enter into an agreement whereby they agree upon the logistics of the sale and terms they will accept.”