Thursday, October 11, 2012

Delfino v. Vealencis (1980) (partition in kind)


a.       Facts- Π and Δ were tenants in common, Π owned about 70% while Δ owned about 30%. Δ had a “garbage business” and lived on her part of the land, and Π wanted to develop the property. Π sued Δ to “force” a partition by sale because: if Π’s business remained, the developed property’s value would be lowered; city planning commission might not grant Π a permit to develop if Δ’s business was still running; and proposed roads would have to be rerouted around Δ’s share. Δ did NOT want to partition by sale, but rather wanted a partition in kind, which would save her business and house.
b.      Procedural History- Trial Ct found for Π and ordered partition by sale, Δ appealed, Conn Sup Ct reversed
c.       Issue- Whether a partition by sale promotes the best interests of the parties when there is a statutory preference for partitions in kind
d.      Holding- No, in this case, a partition by sale did NOT promote the best interests of the parties.
e.       Rule- Partition by sale should ONLY be ordered when two conditions are satisfied:
                                                              i.      It is NOT physically feasible to partition the property in kind, AND
                                                            ii.      The interests of the owners would be better served by a partition by sale
f.       Rationale-
                                                              i.      The lower Ct failed to recognize that Δ lives on her property and derives livelihood from said property
                                                            ii.      Economic and practical factors must be weighed
g.      Notes-
                                                              i.      Only 2 reasons why partition by sale would increase value of property
1.      Π wanted to develop, thus raising value, AND
2.      Partition by kind would hinder the development
                                                            ii.      Cts today mainly favor sale over in kind partition….if one party REALLY wants it, then they can just buy it
                                                          iii.      Main Points:
1.      Partition in kind is the default, sale is ONLY better option when in kind is impossible or the interests of the owners would be better served
2.      While the Cts say they like in kind better, the reality is that sale is more prevalent (and better)

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