partition in kind (actual partition): below notes are from warda&yanano llp
partition in kind is essentially a court-order to divide the property, instead of outright selling it and dividing proceeds. This is favored by courts when possible because, unlike partitions by sale, the property will stay with one or more of its current owners who may want to keep it.
There is a big decision handed down many years ago involving two branches of a farming family in the southern San Joaquin Valley, where 4,700 acres of land (and water rights to a water ditch) were involved, and the two sides of the family just didn’t get along. The land was known as the Ward Ranch.
One side sought the partition by sale. The other side wanted it divided. The appellate court upheld a lower court’s ruling that the property could be divided in-kind, meaning divided among the family members. When possible, this will be the direction of every court. But it has to pass the fairness test, meaning this route would be fair and equitable for all parties.
delfino v. vealencis
sharing the benefits and burdens of co-ownership: when there is a need for independent property rules to determine how the benefits/ burdens are to be shared...
** who gets to make the call that the portion mrs. vealencis would make on the sale is worth the loss of her property? -- mrs. vealencis does!!
** what law supports this? what laws apply to these partition actions? how do we protect the subject value of the land in addition to any objective measures?
(1) free & clear share of the land in FSA: the tenant in common who doesn't want to sell can determine if they want to sell or not (proportional share of either property or the proceeds)
(2) would the owners' interests be better served by the sale? how do we understand/quantify the owners' interests?
(3) can the property be portioned off fairly?
(4) does it effect the economic health and the marketability of the property to proportion it out?
the court's holding illustrates that the best way of allocating resources (unless there's a really good reason to the contrary) is to let the market work out the subjective and objective interests. but in tenancy in common, the court will respect each party's subjective and objective intentions and desires to the extent that they don't infringe on the other party's rights
partition by allottment:
partition by sale (licitation, or succession):
spiller v. mackereth
how do you avoid ouster?
composite activities test:
when a cotenant is in exclusive possssion of the concurrently owned property, the majority holds that unles theer has been an ouster, the cotenant in possession does not have to pay a proportionate share of the rental value to the cotenants out of possession.
what constitutes an ouster?
fiduciary duties: generally, cotenants are not fiduciaries with respect to each other and each tenant is expected to look after his/her own interests. but a fiduciary duty is imposed when (1) one cotenant buys in concurrently owned property at a mortgage forclosure, thus having a superior position and (2) where there's a possibility of adverse possession against the other cotenants, the actor may only do so if his position is so unequivocal and notorious as to put his cotenants on actual notice of a hostile claim.
swartzbaugh v. sampson
at trial court, the judgment went for sampson against mrs. swartzbaugh.
how is it determined if mrs. swartzbaugh is entitled to the execution of the lease cancellation?
each joint tenant has the right to use and possess the whole. either cannot do so to the exclusion of the other, however.
this problem is similar to delfino: one holder of a concurrent interest wants to use the land one way, and the other objects. how is the dispute resolved?
what rights does sampson, the lessee, get in effect through swartzbaugh?
compare this case to riddle and sprague.
in riddle, the written instrument did sever the joint tenancy.
in sprague, the mortgage will sever the joint tenancy if it is considered under the title theory, but not if it's considered under the lien theory.
now, with a lease of the joint tenant -- does it destroy the unities or not?
sampson has possession and use of the whole equal to mr. swartzbaugh's. mrs' can't get rid of her, but she does have some remedies...
ouster! mrs. s may go to enter and possess the property!
how may she establish that?
she can physically go to the ring.... tough luck in her elderly, feeble position.
she can appoint someone else to go do it!
she can give someone else permission to use the land, and when sampson interferes with their use, it would be ouster.
an accounting:
a contribution:
repairments and improvements:
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