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 and defendant owned a rectangular twenty acre parcel of land as tenants in common. Defendant occupied a dwelling and operated a garbage removal business from the land but neither party occupied the remainder of the area. Plaintiff then brought an action for partition by sale but defendant insists on partition in kind. The trial court ruled in favor of the plaintiff and ordered a partition by sale since defendant’s proposal cannot be obtained without material injury to both of them. This was reversed on appeal.
Whether a partition by sale is justified considering the shape of the subject property and location of defendant’s dwelling.
A partition in kind was favored over partition by sale. 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 that 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 city planning commission would withhold subdivision approval based on defendant's business operations.