Whether a property owned by two or more tenants-in-common can be partitioned “in kind,” i.e., by physically dividing the real estate or other property interest, or by subjecting it to a judicial sale, or even whether the property may be subject to partition at all, are issues that courts must decide when the property’s majority and minority owners are strongly divided on whether the property should be divided or sold.

Although the law clearly provides a means for parties to partition their commonly-owned property, see RPAPL §901, oftentimes parties enter into agreements that restrict their right to sever their interest in the property without the unanimous consent of all the owners. Such agreements are enforceable, but courts have nevertheless identified several ways in which an agreement restricting the right to partition can be nullified.