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Delfino v. Vealencis

    Brief Fact Summary. Cotenants of property filed complaint to force partition of land held as tenants in common.

    Synopsis of Rule of Law. The court must analyze the best interests of all parties to determine whether to partition land in kind or partition via sale.

    Facts. The plaintiffs, Angelo and Willima Delfino and the defendant Helen Vealencis owned as tenants in common 20.5 acres of land. On a portion of the land, was the defendant’s house as well as a business she operated. The plaintiffs owned an undivided 99/144 interest and the defendant owned a 45/144 interest in the land. The plaintiffs brought suit to partition the property by sale. The defendant moved for an in kind partition. The trial court ruled for a partition via an auction sale and the defendant appealed.

    Issue. Does a partition by sale promote the best interests of the parties when there is a statutory preference for partitions in kind?

    Held. There is an error and the judgment is set aside and the case is remanded for further proceedings.
    To determine whether a partition in kind or partition by sale is in the best interests of the parties, the court must look to the interests of all the parties, not just the economic gain to one tenant.
    The trial court failed to account for the fact that one of the tenants has been in exclusive possession of the property, resides on the property and derives her livelihood from use of the property. These factors must be given due weight.
    The court must look to whether the property can be practically and physically divided.

    Discussion. The court remanded the case for further proceedings consistent with the opinion. In the opinion the court weighed economic and practical considerations to determine whether the property should be partitioned or sold.


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