Forcing the Sale of Inherited Hawaii Property: Partition Action Timelines & Costs

Inheriting a beautiful piece of real estate in Hawaii with your siblings, or buying a vacation home with a partner, sounds like a dream. But when co-owners disagree on what to do with the property, that dream can quickly turn into a legal nightmare. One person may want to sell and cash out, while another wants to live in the home or rent it out. Because you cannot literally slice a single-family house in half, the legal system provides a solution: a partition action. By filing a lawsuit, you can force the court to divide the property or, more commonly, force a sale and divide the profits. Navigating this process in Hawaii requires understanding strict statutory rules and how courts handle different types of relationships.

Partition in Kind vs. Partition by Sale

In Hawaii, there are two primary ways a court will resolve a property dispute under Haw. Rev. Stat. § 668-1. The first is a 'Partition in Kind,' where the court physically divides the land into separate parcels. This is generally only possible for large, undeveloped tracts of agricultural land on the Big Island or Kauai. The second, much more common method, is a 'Partition by Sale.' If a residential house or a condo in Waikiki cannot be physically divided without destroying its value, the court will order the property to be sold on the open market and the cash proceeds split among the owners.

Heirs Property and Native Hawaiian Inheritance

Multi-generational family land is common in Hawaii, but it presents unique legal challenges. If a property was inherited without a clear will across several generations, it is considered 'heirs property.' To protect families and Native Hawaiian ancestral lands from being aggressively forced into auction by outside investors, the state enacted the Haw. Rev. Stat. § 668A-1 et seq.. This law gives the family members who want to keep the property the first right to buy out the shares of the family member trying to sell, using an independent court appraisal rather than a forced auction.

Divorced Spouses Reselling the Home

When a married couple divorces, the Family Court usually handles the division of the marital home. However, if the home was kept jointly after the divorce decree and a dispute arises years later, or if the couple never legally married, the ex-spouses must file a standard civil partition action. These cases are filed in civil court, such as the First Circuit Court, Honolulu or the Second Circuit Court, Wailuku, not in Family Court.

Unmarried Domestic Partners

Many unmarried couples buy homes together in Hawaii as Joint Tenants or Tenants in Common. If the relationship ends, neither person can legally evict the other if both are on the deed. A partition action is the only legal mechanism to force the other partner to either buy out your share or agree to list the property with a real estate agent.

Feuding Joint Venture Business Partners

Real estate investors frequently pool their money to buy commercial properties or flip houses. If the business partnership sours, one partner can file a partition action to liquidate the asset. In these commercial cases, precedents like Curtis v. Dorn, 123 Haw. 301 (HI Intermediate Court of Appeals 2010) highlight how courts will carefully review the financial contributions of each partner-including down payments, mortgage payments, and renovation costs-to ensure the final distribution of funds is equitable.

Step-by-Step Process to Force a Sale in Hawaii

Filing a partition action is a formal civil lawsuit. It involves strict legal steps to ensure all owners and mortgage lenders are properly notified.

Step 1: Filing the Complaint

Your attorney will draft and file a formal legal complaint against your co-owners. This is typically accompanied by a Form 2-A, Hawaii, Circuit Court, Civil Information Sheet. Additionally, your lawyer will record a 'Lis Pendens' (Notice of Pending Action) with the Bureau of Conveyances, Honolulu. This puts a cloud on the title, preventing your co-owners from secretly selling or taking out a new mortgage on the property while the lawsuit is active.

Step 2: The Role of Court-Appointed Commissioners

Once the judge grants the partition, they usually will not list the house with a standard real estate agent right away. Instead, the court appoints a neutral third-party 'Commissioner' (often a local real estate attorney or broker). The commissioner's job is to appraise the property, market it, review offers, and manage the sale process to ensure it is fair to all parties. The commissioner reports directly to the judge.

Step 3: Distribution of Proceeds

After the property is sold, the money does not go directly to the owners. First, the mortgage and any property taxes are paid off. Second, the commissioner's fees and court costs are paid. Finally, the remaining money is divided among the owners. If one owner paid all the property taxes or funded a major roof repair, their lawyer will request an 'accounting' so they are reimbursed from the proceeds before the final split.

How Much Does it Cost in Hawaii?

A partition action is an expensive legal remedy, and costs are typically paid out of the final sale proceeds.

• Court Filing Fees: Filing a civil complaint in a Hawaii Circuit Court generally costs around $315.
• Commissioner Fees: The court-appointed commissioner will charge an hourly rate (usually $250 to $400) or a percentage of the sale, which is deducted from the property's sale price.
• Attorney Fees: Most real estate attorneys charge hourly rates ranging from $300 to $500. Because partition actions require drafting complaints, attending hearings, and reviewing appraisals, total legal fees can easily range from $10,000 to $20,000 per party.

How Long Does the Process Take?

If your co-owners realize they cannot win and agree to a voluntary settlement, the process can be resolved in 3 to 6 months. However, if they stubbornly fight the sale in court, dispute the appraisal, or hide from being served with the lawsuit, a full partition action in Hawaii typically takes 9 to 18 months from the initial filing to the day you receive your check.

Frequently Asked Questions (FAQ)