Property question

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Property question

Postby perfunctory » Sat May 06, 2017 4:53 pm

For tenancy in common, when partitioning, do courts prefer partition in kind or partition by way of sale?

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Re: Property question

Postby 9xSound » Sun May 07, 2017 1:58 am

A partition in kind is great when it's feasible, but it frequently isn't. Courts will inquire first whether subdividing is possible. If it isn't, or if it cannot be achieved equitably, then the court will order a partition by sale.

While a partition in kind might be preferable to forcing somebody to involuntarily sell his or her interest in real property, in many cases it is simply impossible to partition the land. Title attorneys like myself know that it's frequently illegal to subdivide real property, even if it isn't completely impracticable. For instance, tenants in common (TICs) often inherit or invest in residential properties together. Residential properties are always subject to zoning density restrictions. For example, R1 is a common zoning designation allowing for one residential unit per one acre of land. If the parcel is 1.5 acres, the local Planning authority won't permit a further subdivision of the land because any parcel less than one acre would violate the ordinance (grandfathering aside). I live in an area zoned R10: one dwelling per 10 acres. People with 19 acres cannot subdivide their parcel because one of the resulting parcels would have to be fewer than 10 acres. Note also that the local superior or district court will not order a partition in kind if doing so would violate the zoning ordinance — certainly not just to resolve a private dispute between TICs who hold title to private property that one of them doesn't want to sell. Sorry, the court will order a partition by sale, although it will usually give the TIC who doesn't want to sell the option of buying out the other tenant before ordering a sale.

Moreover, it's often impractical to order a partition in kind. If the TICs own a house sitting on a typical residential tract of a half acre or less, especially in town, you'd likely be drawing the line through the middle of the house. That doesn't work. Your only practical option in such cases is partition by sale. But even large rural properties with no zoning prohibitions can be tough to subdivide equitably. There are always difficult issues involving topography, source of water, access, view, timber, potential for development, and so forth. Maybe not so much in the flatter parts of the country. And even if the property meets the criteria to be subdivided, most jurisdictions will require a survey to officially subdivide land, which is expensive and can create delays.

In law school, they love to ply you with fact patterns that require you to analyze the feasibility of a partition in kind (note some of the issues I just mentioned), but in practice, it's the exception — at least in urban and mountainous areas.

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Re: Property question

Postby B90 » Sun May 07, 2017 10:46 am

perfunctory wrote:For tenancy in common, when partitioning, do courts prefer partition in kind or partition by way of sale?

On a law school exam, there is a heirarchy that your prof will expect you to analyze.
Here is how I would IRAC it.
Issue: whether Blackacre should be divided by partition in kind or by sale
Rule: when real property is owned as a tenancy in common, the law prefers partition in kind, when feasible
1st paragraph:facts supporting partition in kind
2nd paragraph: facts that show partition in kind is not feasible.
3rd paragraph: Thus, the court will likely order Blackacre to [be partitioned/be sold] because [most convincing fact].

You want to look for facts that make partioning either impractical or illegal. One of the most common situations that profs (and the bar examiners) love to use is lake or beachfront property with a zoning requirement of at least 100 feet of frontage. You have property with 125 feet of frontage. Therefore, it is not mathematically possible to divide the property in half without violating zoning laws.

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