When a property dispute between co-owners ends up in litigation, the outcome rarely turns on who’s telling the truth. It turns on who can prove it.
According to Alexander Paykin, Esq., founder of Paykin Law, a New York real estate and commercial litigation firm, the single biggest factor that weakens a co-owner’s position in partition actions and nearly every other kind of dispute isn’t a bad legal argument. It’s a lack of paper trail.
“Failure to establish and preserve evidence, that is basically where most claims fail,” Paykin says. “Most of the time, a client will come to me, and they’ll give me a story based on which they should be entitled to something,” he says, but when he asks for a written agreement, an email, anything, the answer is usually that it was handled on a handshake, or discussed only by phone.
How an Informal Understanding Falls Apart Years Later
Paykin points to a scenario he sees often: at a family gathering, one sibling offers to cover an aging parent’s property taxes, with the understanding that they’ll be repaid when the property eventually sells. Everyone at the table agrees. No one writes anything down.
Ten years later, when a partition action divides the property among the heirs, that understanding can evaporate. “The other siblings suddenly develop selective amnesia,” Paykin says of how these disputes typically play out. Without something in writing, the sibling who fronted the money has no way to prove the arrangement ever existed.
His advice is simple: after that conversation happens, before any money changes hands, send a follow-up email or even a text confirming what was agreed, and get the other parties to reply acknowledging it. “You should at the very least send an email to the siblings, the parents, etc., confirming what you’re going to be doing, and getting everybody to reply, acknowledging that they’re on board,” he says.
Why an Oral Agreement Costs More Than It’s Worth
Even when an oral agreement can eventually be proven, Paykin says the cost of proving it rarely makes sense. Cases without documentation often can’t be resolved on the papers; they have to go all the way to trial so a judge can hear live testimony and decide who’s credible.
“Even if you have to ultimately prove it based on an oral agreement that ends up having to go to trial… well, great, you win your $30,000 credit, but you increased your legal fees by $50,000,” Paykin says. “Congratulations. That’s the greatest victory ever.”
A simple written record avoids that math entirely.
A Personal Example
Paykin points to his own family’s experience settling his father-in-law’s estate as an example of how a co-ownership situation can resolve cleanly. He and his spouse were offered the choice of buying into the inherited property as a rental investment alongside his spouse’s brother, who wanted to keep it. After running the numbers, they decided the rental income didn’t justify the investment, and, as a real estate attorney who deals with tenant disputes regularly, Paykin says he “know[s] better than to take on a tenant” he’d eventually have to represent himself against. The parties agreed on an independent appraisal, accepted the number, and the brother bought out their share. No court filing was necessary.
Paykin contrasts that with a case he handled between a brother and sister that took roughly six years to resolve, driven in large part by disputes over unwritten claims, one sibling asserting they deserved credit for unpaid caretaking, another for property taxes, another for repairs, with no documentation behind any of it. By the time it settled, he says, the legal fees had eaten into whatever equity the litigation was meant to protect.
The Bar Isn’t High
Paykin is clear that formal contracts aren’t required to protect a claim. A confirming email, a text message, or a reply in a group chat can be enough to hold up later. “Everything should be documented. Everything should be provable easily,” he says, “because it’s one thing to get everybody to agree in writing when they actually agree. It’s another thing to get somebody to admit that they agreed orally two years later when you’re at each other’s throats.”
The lesson, in Paykin’s experience, applies well beyond partition actions: any informal understanding between co-owners, family members, or business partners is only as strong as the record behind it.
For questions about protecting a co-ownership interest in New York, contact Paykin Law’s real estate litigation practice.
Alexander Paykin, Esq., is a New York real estate and commercial attorney and founder of Paykin Law. The firm handles real estate transactions, litigation, foreclosure, and landlord-tenant matters across the New York metro area.
Disclaimer: This article is based on information provided by the expert source cited above. It is intended for general informational purposes only and does not constitute legal, financial, or real estate advice. Readers should conduct their own research and consult qualified professionals before making any real estate or financial decisions.
