Delfino v. Vealencis

Supreme Court of Connecticut · 1980 · Property

Propertypartitionpartition in kindpartition by saleco-tenancytenants in commonpartitionpartition in kind preferred

Facts

The plaintiffs and the defendant owned as tenants in common a 20.5 acre rectangular parcel in Bristol, Connecticut, with the plaintiffs holding a 99/144 interest and the defendant a 45/144 interest. The defendant occupied the dwelling located at the extreme western end of the property and used part of the land to operate a rubbish and garbage removal business that her family had operated there since the 1920s. The plaintiffs wished to develop the property into forty-five residential building lots and sought partition by sale. The defendant requested partition in kind and appointment of a committee to conduct it.

Issue

Whether the trial court properly ordered partition by sale rather than partition in kind of the parties' jointly owned property. More specifically, did the findings support the conclusion that physical partition was not feasible and that a sale would better promote the interests of the owners?

Rule

A partition by sale should be ordered only when two conditions are satisfied: (1) the physical attributes of the land are such that partition in kind is impracticable or inequitable, and (2) the interests of the owners would better be promoted by a partition by sale. Because the law presumes that partition in kind is in the owners' best interests, the burden is on the party seeking a sale to prove that a sale would better promote those interests.

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

In Columbus, Ohio, siblings Nora Patel and Evan Morse own a 24-acre tract as tenants in common. Nora holds a 70% interest and wants the court to order a sale to a homebuilder, while Evan holds 30%, lives in a farmhouse on the northern edge, and asks for the land to be physically divided because the parcel is a single rectangular tract with road frontage on two sides.

If Nora seeks partition by sale, which is the strongest argument for denying the sale?

Explanation. Partition in kind is preferred. A court should order partition by sale only if two conditions are satisfied: the land’s physical attributes make in-kind partition impracticable or inequitable, and sale would better promote the interests of the owners. The party seeking sale bears that burden. Residence by one cotenant is important but not an absolute bar, and unequal shares do not by themselves prevent sale.