Daily Development for Wednesday, September 15, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

Thanks to Steve Winkler at Fidelity National Title for this one

COTENANCY; PARTITION:  In appropriate case, where one cotenant's interest is insignificant, court may order partition by an order vesting clear title in the cotenant with the larger ownership interest subject to a cash payment from that cotenant to the cotenant with the smaller ownership interest.

Fernandes v. Rodriguez, 54 Conn. App. 444, 1999 WL 622513 (Conn.App. 8/10/99)

In 1994, Fernandez acquired an apartment building with Rodriguez for a price of $45,900. They intended to live in one unit together. The took title as joint tenants. According to the majority, the record does not disclose who became liable on the mortgage, but the dissent concludes that both parties executed the mortgage and the note (which would be consistent with the facts as they existed at that time).  Fernandez paid approximately $15,000 in down payment and closing costs, while Rodriguez paid only $1000 (although the dissent notes that Rodriguez paid another $3500 in other costs related to "move in" to the building). Rodriguez and Fernandez lived together briefly in one of the apartments, and for four months Rodriguez performed maintenance, repair and "fix up" to the apartment preparatory to renting.

Rodriguez then stopped living in the shared apartment and paid no attention to it for a period of about five years. Fernandez claimed that Rodriguez was not expelled from the apartment and still was welcome to live there. (In general, the trial court believed everything that Fernandez said and doubted everything that Rodriguez said.) Fernandez rented out the other three apartments in the building, and with the proceeds of the rents paid the mortgage and maintained the premises, returning a net profit over the five years of $1500.

Fernandez then brought an action to partition the property and Rodriguez, in his answer, agreed to the partition, but the parties were in dispute as to their respective economic shares in the property and the proceeds.

The trial court found that Rodriguez' interest in the property was, at best 10%. It ordered that Fernandez pay Rodriguez his down payment plus 10% of the net value of the property, plus a portion of the rents (there is no indication as to how the court computed Rodriguez' share of the rents). The court denied any "possession rent" to Rodriguez for the time that Fernandez lived in the apartment alone. Most importantly, the court concluded that Rodriguez interest in the property was "minimal" and as a consequence no partition sale was necessary. Upon payment to Rodriguez of his share, which amounted, by the court's accounting, to $4600, the court agreed to award full title to Fernandez.

Connecticut statutes address the question of partition, and one of them described methods of partition as sale or physical division of the properties. Nevertheless, the court concluded that where one party's interests are minimal, a forced sale of that interest to the party holding the larger interest was consistent with the statute. A dissenter strongly disagreed.

The dissent not only disagreed with the remedy adopted by the court here for the first time in Connecticut, but also disputed the conclusion that Rodriguez' interest amounted to only ten percent. It noted that substantial evidence suggested that Rodriguez was (and would remain) personally liable on the now $25,000 mortgage balance. And, as noted above, found that Rodriguez had expended additional funds and "sweat equity" at the outset. Fernandez' actions later in maintaining the apartment all involved expenditure of rent monies, which the parties owned jointly, so Fernandez never spent more on the apartent than Rodriguez.

Comment 1: Partition in most states is an equitable remedy, and the discretion of an equity court is quite broad presumably broad enough to encompass the remedy here. The only problem is the rather specific statutory language, and indeed it is hard to see how the court is justified in overlooking that language in reaching the result that it does.

Comment 2: The question of liability on the mortgage note obviously is critical. If, indeed, Rodriguez was jointly and severally liable on a $36,000 note as of the time of purchase, then Rodriguez' interest was far greater than ten percent, and nothing that happened thereafter could or should have changed that percentage interest.

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