by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

The Reporter for this development is Professor Cyril Fox of the University of Pittsburgh.

COTENANTS; PARTITION; AGREEMENT NOT TO PARTITION: While joint tenants may validly agree to restrict their right to partition, the court will not refuse partition where the terms of the agreement have not been met. Marchetti v. Karpowich, 667 A.2d 724 (Pa. Super. 1995).

Leslie and Kathryn acquired a residence as joint tenants with rights of survivorship. Thereafter they entered into an agreement that, if either of them "decides to permanently vacate [the property] they must agree to give a full one-year notice." In addition, each signed a personal guarantee of the one-year notice which provided that, if one party vacated the premises, the other had a right to buy out her interests. During the one-year period, the vacating party agreed to pay rent to the party who did not vacate and if the party remaining in possession wanted to keep the property, the vacating party "can not force [the non-vacating party] to sell [the house] just to get [her share]."

As may be apparent, this agreement was drafted by one of the joint tenants, Kathryn, who now sought to prevent Leslie from obtaining partition. After hearing conflicting evidence, the trial court concluded that neither party had vacated the property and, therefore, the agreement barring partition, if any, did not take effect. The Pennsylvania Superior Court affirmed. Vacation of the property by one party was a condition precedent to the agreement's bar to partition.

Nor was the agreement effective because of the lack of clean hands of the party seeking partition. Leslie admitted that she did not want to vacate because did not want to have to pay rent for a year without living there. The court observed that it knew of no case providing that one is has unclean hands just because one refuses to perform a condition precedent to a contractual obligation that one is under no legal obligation to perform, This being precisely the type of situation for which partition was designed, where one or both parties desire to end a concurrent ownership relationship, there was no error in granting partition and appointing a master to sell the property.

Reporter's Comment: What may be most significant about this case is the court's recognition that agreements not to partition can be enforceable in appropriate circumstances. Pennsylvania, like many states, has court opinions containing the overly broad statement that "each joint owner of real estate has an absolute right to partition." Indeed, the court said it in this case. Yet the right to partition is not as absolute as appears. At least where the restraint on partition is reasonably limited as to time and purpose so as not to amount to an undue restraint on alienation, it may be enforced.

Editor's Comment: As the Reporter has aptly perceived, the restriction of the right of partition is a critical right. The right of partition is an equitable one that typically the parties cannot control by contract. To do so would smack of a restraint on alienation. Will the court carry the dicta in this case further if and when the issue arises again?

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