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Delfino v. Vealencis, Supreme Court of CT, 1980 Is partition in-kind OK here? Issue Reasoning Rule
Statute said: Court may order sale if „it will better promote the interests of the owners‟ The factors considered by the trial court are dispositive. Physical attributes are OK for in-kind partition: o Rectangular in shape o House on it o Roads abut it o Only 2 interests o Home on it o ∆ earns livelihood from it o she had actual and exclusive possession for many years o Only 2 co-tenants. No evidence planning commission wouldn‟t approve Advances in technology reduce smell. ∆ would be able to continue her bus. City has been giving her permits every year. Law presumes that in-kind partition is best. Court may not order sale unless 2 conditions: 1. the physical attributes of the land are such that physical partition is “impracticable” or “inequitable 2. ALL the interests of the ALL owners would be better promoted by a sale a. Not just economic interests b. (if too many interests, too manu TiCs, by sale is better) Burden is on party requesting sale to show that sale will better promote parties‟ interests.
Facts
∏ and ∆ were TiC to a 20.5 acre piece of land. ∏ owned 99/144th share but did not live on the property ∆ owned 45/144th share had her home and operated a garbage removal business from it (the garbage trucks and containers were parked on the property). This business violated city ordinances but since predated the ordinances, it got city permission to operate every year since the 20‟s. ∏ wanted build a residential subdivision on the land and brought an action seeking partition by sale. Trial court granted the partition by sale because: 1. Planning commission might approve residential subdivision next to garbage bus 2. lots might not sell or sell at low prices next to garbage bus 3. 3 lots would go to waste by partition if ∆ retained bus 4. Roads would have to be rerouted. Trial court also said that not likely that ∆ can continue the bus since it violated ordinaces.
Held Procedure P argues D argues
Trial court erred in ordering partition by sale. Partition in kind is feasible. Trial court granted partition by sale because partition in kind could not be done without material injury to the parties.. ∆ wants partition in kind.