Collins v. Lewis

Kentucky Court of Appeals · Contracts

ContractsPartitionJointly owned real propertyKRS 389A.030partitionsale of jointly owned propertymaterial impairment of valuepresumption of indivisibility

Facts

Leroy Lewis brought an action under KRS 389A.030 seeking sale of real property jointly owned by himself and the Collins heirs, with proceeds to be divided according to undisputed ownership interests. Lewis presented expert testimony from Vance Mosely, who stated that because of factors including mineral interests, timber, road access, and topography, the land could not be divided in a way that equally apportioned value and that division would reduce the property's total value. The Collins heirs presented surveyor Tom Boggs, who testified the land could be divided from a surveying standpoint, but he was not an appraiser and could not testify about value. The circuit court found that division would materially impair value and ordered the property sold as a whole.

Issue

In a KRS 389A.030 action involving jointly owned real property, did the circuit court err in declining to partition the property and instead ordering a sale after finding that division would materially impair the property's value?

Rule

Under KRS 389A.030(3), real estate is presumed indivisible unless a party raises divisibility in a pleading. The party claiming divisibility bears the burden of going forward with some proof that the property can be divided without materially impairing value; once that evidence is presented, the party seeking sale bears the burden of proving that division would materially impair the property's value. A trial court's factual findings on that question will not be overturned unless clearly erroneous.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Pikeville, Kentucky, three siblings and their cousin jointly own a 220-acre tract. In a partition action, the siblings' answer expressly alleges the tract can be partitioned, but at the hearing they present no witness, map, appraisal, or survey; the cousin seeks a judicial sale.

Under the governing rule, what is the most likely result?

Explanation. The rule is that indivisibility is presumed unless divisibility is raised in a pleading, but the party claiming divisibility also bears the burden of going forward with some proof. Merely pleading divisibility does not by itself establish that the land can be divided without materially impairing value. If no supporting evidence is presented, the presumption effectively remains operative and the court may treat the property as indivisible. (Derived from Collins v. Lewis (n.d.).)