Can one brother make the other brother sell jointly held property?

Before we delve into the legal approaches to resolving this situation, some thought should be given to finding a solution that doesn't rely totally on legal strategies. Finding a non-legalistic solution must start, however, with an understanding of why your brother is resisting the sale of the property. Is it because he is sentimentally attached to the place? Is it because he thinks it's a bad time business-wise to sell? Or is he simply too immersed in his grief to make any kind of business decision?

We strongly urge you to find to way to get some answers to these questions, ideally by engaging your brother in a conversation where he feels truly free to share his feelings with you openly. The purpose of this initial conversation is not to change his mind, but rather, to understand his point of view so you can re-evaluate how to respond. You should be clear to him that this is your agenda, so he feels open to talk with you.

Once you have heard his explanations "“ and hopefully you then be been able to share some of your own reasons for wanting to sell the place "“ it should be possible for the two of you to discuss compromises and options. You might want to defer the sale for a set time period, in exchange for a commitment on his part to sell it at a later date. You also might be able to reach some financial accommodation that motivates your brother to join you in selling the property. Bear in mind that even if a lawsuit is filed you still will have to try to resolve things in a negotiated or mediated process, so you might as well try to commence that process now.

If these attempts are utterly unsuccessful you have the option of filing a court action, which in most states is called a partition action. In this special kind of lawsuit you are asking the judge to take over the property, appoint someone to act in your stead, and sell the property and divide the proceeds. Typically a retired judge or real estate agent is appointed as the referee, and they totally take over the process "“ you and your brother are both excluded from the sale process, to avoid any conflicts between the two of you. After it is sold the referee returns to court with the proceeds of sale, and then one or both of you can present a claim for reimbursement if either of you contends you are entitled to more than 50% of the proceeds.

A partition action will get the property sold, but at great cost, both financially and otherwise. You and your brother will have to jointly pay the bills of the attorneys and the referee, plus court costs, and most likely the sales price will be lower than would be the case in a private sale. So, be prepared to go down this path if nothing else works, but please try some of the other solutions first!