Friday, February 10, 2012

Delfino v. Vealencis case brief

Delfino v. Vealencis

-D and P were both tenants in common (TIC).
-D had a garbage removal business and a dwelling, 45/144 ownership.
-P was a residential developer, developing 45 residential lots, 99/144 ownership.
-Neither the D nor the P was in actual possession of the remainder.

-Is a partition or sale a better option in this case?

Since the property in this case may be practicably be physically divided, and since the interests of all owners will be better promoted by a partition in kind, D is entitled to such a partition.

-A court of equitable jurisdiction may authorize the physical partition of any real estate held by TIC and can appoint a committee for that purpose upon complaint of any interested person.
-If in the opinion of the court, a sale of the jointly owned property will better promote the interests of the owners, the court may order a sale.  
-Partition in kind > sale.
-A sale of one’s property without his consent is an extreme exercise of power warranted only in clear cases.
-Partition by sale should be ordered when both, 1.  physical attributes of the land are such that a partition in kind is impracticable or inequitable, and 2.  interests of the owners would better be promoted by a partition by sale.  (The burden is on the party requesting the sale to prove 2.)

-A partition in kind would be practicable.
-It is the interests of all the tenants in common that the court must consider and not merely the economic gains of one tenant, or a group of tenants.
-One tenant in this case has actual and exclusive possession of the property, derives livelihood from business on the property, has a home on the property, as has the family before him.

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