In a recent case, in which Richard A. Klass, Your Court Street Lawyer, represented one of three owners of real property asked the trial judge to grant ‘summary judgment’ against the other owners, granting his motion to partition and sell the real property at auction. In support of the motion, it was requested that the court grant partition and sale, in accordance with Real Property Actions and Proceedings Law [RPAPL] Article 9. It was also requested that the court order the distribution of the net proceeds  from the auction sale of the real property to the parties in one-third interests, along with crediting the plaintiff for the moneys paid at closing when the property was first purchased. RPAPL Section 901 provides that one who holds an interest in real property as a tenant in common may bring an action against the other tenants-in-common for the partition or sale of the property. The action was brought by Plaintiff as a tenant-in-common against the other two owners. The Plaintiff had to prove the following:

A: Plaintiff is ‘seised’ with an interest in the Property:

In the action, there was no issue of fact that Plaintiff had a right to possession of the property as a co-tenant, which is all that is needed to maintain an action for partition and sale. See, Dalmacy v. Joseph, 297 AD2d 329 (2d Dept. 2002). He was one of the three owners of the property, as indicated on the face of the Deed. Pursuant to RPAPL 915, it was requested that the court issue an Order determining the parties’ rights, shares, and interest in and to the property.

B: Physical partition would be prejudicial:

Then, the plaintiff had to show that the property could not be physically partitioned in order to sell the entire property as one. In that case, a physical partition of the house would not have been practical and without prejudice to the owners, given that it was a three story brownstone. See, e.g. Cheslow v. Huttner, 13 Misc.3d 1224(A) (Sup. Ct., NY Co. 2006) (physical partition of a townhouse would be greatly prejudicial to the owners); Donlon v. Diamico, 33 AD3d 841 (2d Dept. 2006) (plaintiff established her entitlement to summary judgment directing the sale of the property because partition alone could not be made without great prejudice to the owners). Based upon RPAPL 915, where it would be prejudicial to the owners to physically partition the property, the court should direct the property to be sold.

C: Plaintiff should be credited for the down payment:

Since partition, although statutory, is equitable in its nature, the court may compel the parties to do equity between themselves when adjusting the proceeds of the sale. Oliva v. Oliva, 136 AD2d 611. It has been held that a court may consider, among its factors of considering the equities of the partition and sale action, the down payment made by a co-tenant. Perrin v. Harrington, 146 AD 292. ———– copyr. 2010 Richard A. Klass, Esq. The firm’s website: www.CourtStreetLaw.com Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.

R. A. Klass Your Court Street Lawyer

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