There are times when co-owners of real property in Hawaii are involved in a dispute and no longer wish to continue co-ownership of that property, or one party is no longer making mortgage payments and the paying party wants to remove the property not paying party of the title. The question that often follows is what are the options for the co-owners if they want to break the relationship.

In the event that there is no prior written agreement between the co-owners that establishes the obligations of each owner and the procedures to resolve disputes, the co-owners basically have two options:

(1) reach an agreement to resolve the dispute or

(2) terminate the joint ownership relationship through a court-supervised partition action pursuant to Hawaii Revised Statutes Chapter 668 (Hawaii Real Property Partition Statutes).

The co-owners must first try to resolve their differences and come to some compromise. By reaching such a compromise, the joint owners would not need a partition action in Hawaii, which can be a very expensive process. However, if seeking such an agreement turns out to be a dead end, then a partition action by Hawaii is necessary.

In a Hawaii partition action, one or more of the owners files a lawsuit against the remaining owners. The party filing the complaint must also join as a party all persons who have or claim to have any legal or equitable right, title, or interest in the property described in the complaint.

Once a Hawaii partition action is filed, the court has jurisdiction to divide the real property by (1) division in kind or (2) division 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 achieved by selling the entire property at public auction and dividing the proceeds among the owners according to their respective interests in the property.

Courts tend to favor a partition in kind first, but if such a division is not feasible, then the court will proceed with a partition by sale. As you can see, ending a real estate co-ownership relationship is not that simple and can be expensive. Therefore, you should seek a consultation with a Hawaii attorney experienced in resolving Hawaii real property co-ownership disputes.