A partition by sale should be ordered only when two conditions are satisfied: (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable; and (2) the interests of the owners would better be promoted by a partition by sale.
Plaintiffs Angelo and William Delfino, and defendant Helen C. Vealencis, owned a rectangular twenty-acre parcel of land as tenants in common. Vealencis occupied a dwelling and operated a rubbish and garbage removal business from the land. None of the parties is in actual possession of the remainder of the property. Delfino proposed to partition the property and develop it into forty-five residential building lots. In 1978, Delfino brought an action in the trial court seeking a partition of the property by sale with a division of the proceeds according to the parties' respective interests. Vealencis moved for a judgment of in-kind partition and the appointment of a committee to conduct said partition. The trial court, after a hearing, concluded that a partition in kind could not be had without "material injury" to the respective rights of the parties, and therefore ordered that the property be sold at auction by a committee and that the proceeds be paid into the court for distribution to the parties. Vealencis objected to the lower court's order of a partition by sale, claiming the decision was unsupported by subordinate facts and other factors were improperly considered.
Did the Superior Court properly order the sale of the property?
The court held that a partition in kind was favored over partition by sale. The court determined partition by sale should be ordered only when two conditions are met: physical attributes of the land render partition in kind impracticable or inequitable; and owners' interest would better be promoted by a partition by sale. The court found the lower court failed to recognize the shape of the parcel and location of dwelling made partition in kind particularly feasible. The court further found error in the finding that the city planning commission would withhold subdivision approval based on Vealencis’ business operations. The facts before the court were insufficient as a matter of law to overcome the preference for partition in kind.