Also known as:partition sale · forced sale partition
Written by attorneys — see sources below.
A judicial remedy available to co-tenants by which a court orders the sale of commonly owned real property and the division of sale proceeds among the owners. The remedy is available when a fair and equitable physical division of the land cannot be accomplished because of the property's physical characteristics or external legal constraints such as zoning rules that would render resulting parcels unusable or unbuildable.
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How its tested
Common Examples
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Zoning Blocks Lakefront Division
Penelope Price and Portia Price own a lakefront tract as tenants in common. Shoreline regulations require each buildable lot to have at least 150 feet of frontage and road access, but the tract has only 260 feet of frontage and one narrow access strip. Penelope sues for partition. Because any physical split would leave at least one parcel noncompliant and unusable, the court orders a judicial sale of the entire tract and divides the proceeds according to the owners' interests.
Wind Farm Integration Prevents Split
High Ridge Wind LLC and rancher Maria Lopez own a narrow ridgeline tract as tenants in common. The tract holds a continuous row of turbines tied to one substation. Zoning requires minimum turbine spacing and a unified interconnection. Lopez seeks partition to carve off a grazing parcel. Because any physical division would violate zoning or destroy the integrated facility, the court orders a judicial sale of the entire tract and distributes the proceeds in proportion to the co-tenants' interests.
The plaintiffs Angelo and William Delfino and the defendant Helen C. Vealencis own as tenants in common an approximately 20.5 acre parcel of land in Bristol, Connecticut, together with the defendant's dwelling located at the extreme western end of the parcel. The plaintiffs hold an undivided 99/144 interest in the property and the defendant holds a 45/144 interest. The defendant occupies the dwelling and a portion of the land from which she operates a rubbish and garbage removal business that her family has conducted on the premises since the 1920s. The plaintiffs, one of whom is a residential developer, propose to develop the property into forty-five residential building lots upon partition.
The 20.5 acre parcel is basically rectangular in shape, abutted by Dino Road and Lucien Court, with access to Birch Street provided by a right-of-way. The defendant's business operations consist of overnight parking, repair and storage of trucks and dumpsters along with office work, with no refuse deposited on the property. The city of Bristol has granted the defendant the appropriate permits and licenses each year.
In 1978 the plaintiffs brought an action in the trial court seeking a partition of the property by sale with division of the proceeds according to the parties' respective interests. The defendant moved for a judgment of in-kind partition and the appointment of a committee to conduct the partition. The plaintiffs had originally asked in the alternative for a physical partition but later moved for a judgment of partition by sale. After a hearing, the trial court concluded that a partition in kind could not be had without material injury to the respective rights of the parties. The court ordered that the property be sold at auction by a committee with the proceeds paid into the court for distribution.
The trial court's conclusion rested on findings concerning the situation and location of the parcel, its size and area, the physical structure and appurtenances on the property, the present and expected continued use by the defendant, the property's zoning classification, and the plaintiffs' proposed subdivision plans. The court found that approval by the city planning commission for subdivision would be difficult to obtain if the defendant's business continued, that lots might not sell or might sell at lower prices, that three proposed lots would have to be consolidated and lost if the defendant received the one-acre parcel containing her residence and business, and that a proposed road extension would have to be rerouted. The trial court also found that the defendant's use of a portion of the property is in violation of existing zoning regulations. The defendant appealed, claiming that the trial court's conclusion that the parties' interests would best be served by a partition by sale is not supported by the findings of subordinate facts. The defendant also claimed that the court improperly considered the zoning regulations and economic impact factors in arriving at that conclusion. In addition, the defendant claimed that the court failed to include in its findings of fact a paragraph of her draft findings reciting that her use is a valid nonconforming use. The parties introduced only inconclusive and hearsay testimony regarding the zoning regulations and the date of their enactment, and never introduced the zoning regulations themselves into evidence at the hearing.
When will a court order partition by sale instead of partition in kind?
A court orders partition by sale when a fair and equitable physical division of the property cannot be made. Physical characteristics of the land and external legal constraints such as zoning requirements that render separate parcels unusable or unbuildable justify the sale remedy.
Supporting sources
Does the preference for partition in kind prevent a sale when zoning blocks division?
No. The preference for partition in kind yields when external legal constraints such as shoreline or energy zoning rules make any physical split produce at least one unusable parcel. In that situation the court orders a judicial sale and divides the proceeds.
Supporting sources
Can a co-tenant force partition by sale over the objection of another co-tenant?
Yes. Any co-tenant holding a present possessory fee interest may compel partition. The court then determines whether partition in kind or by sale is the appropriate remedy based on whether a fair physical division is feasible.
Supporting sources
partition
, but later moved for a judgment of
partition by sale
. : Such a
partition
is authorized by General Statutes § 52-495 which states: “
PARTITION
OF JOINT AND COMMON ESTATES. Courts having jurisdiction of actions for equitable relief may,…