SCOVT affirms partition order that did not physically divide property, rejects objection that infeasibility of zoning permit was not a lawful consideration.

  Wells  v. Spera, 2023 VT 18   

           

CARROLL, J. Plaintiffs appeal a civil-division order assigning real property to defendant in this partition action. We affirm.

Plaintiffs argue that the failure to divide the property offends the long-standing preference to order partition in kind over assignment or sale, and that the decision not to divide because of potential zoning violations exceeded the scope of the commissioners’ authority set out in the reference order.

 

Partition actions are governed by statute, 12 V.S.A. §§ 5161-5188, and Civil Rule 53. Under this framework, once the trial court determines partition is appropriate, it appoints three commissioners who reside in the same county as the subject property and who “shall make partition of the estate,” 12 V.S.A. § 5169(a), unless it “cannot be divided without great inconvenience to the parties.” Id. § 5174. If the property cannot be divided without great inconvenience, the “court may order it assigned to one of the parties, provided he or she pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable.” Id. § 5174. Only if no party will take an assignment may courts order the sale of a property. Id. § 5175. Following receipt of the commissioners’ report, the trial court must accept it “[u]nless cause is shown.” Id. § 5172.

 The court issued an order of appointment of commissioners and order of reference by consent of the parties. The order appointed three commissioners and directed them to determine whether the property could be divided, assigned to one of the parties, or sold. They were ordered to determine the fair market value of the property and each person’s equitable share. Neither party reserved the right to object to the commissioners’ report.

 The commissioners credited defendant’s testimony that division would result in an overall value of $1,300,000, which was $200,000 less than the $1,500,000 combined value and concluded that “given the serious zoning hurdles,” the property could not “be physically divided without great inconvenience to the parties because doing so has the very real potential to materially decrease or perhaps even extinguish the property’s value.” They awarded defendant first option to buy out plaintiffs’ interest. 

 Plaintiffs filed a motion objecting to the report, citing Vermont Rule of Civil Procedure 53(e)(2)(iii), arguing the commissioners erred as a matter of law.  in concluding that partition would result in zoning violations. In the alternative, they argued that the equities favored assigning the property to them.

The court denied the motion and adopted the report without qualification. It reasoned those plaintiffs had not reserved their right to object to the report as required by the plain language of Civil Rule 53(e)(2)(iii). The court found that the commissioners had acted within the scope of their mandate as described in the reference order and that the record supported their findings and conclusions.

 In contrast to plaintiffs’ characterization, the issue is not whether the commissioners concluded partition in kind was inequitable purely because division would create zoning violations; instead, the question here is whether the commissioners can consider potential zoning violations to determine whether physical division would materially decrease the property’s value. See Billings v. Billings, 114 Vt. 70, 74, 39 A.2d 748, 750 (1944) (explaining that great-inconvenience-to-parties test is whether “the aggregate value of the several parts when held by different persons in severalty will be materially less than the whole value of the property if owned by one person”). 

The commissioners’ findings regarding potential zoning violations, among other findings, supported their conclusion that division would materially decrease the property’s value. The record supports their findings, and the findings support their conclusion not to divide the property. It follows that the trial court did not err in accepting this portion of the report. See Messier, 140 Vt. at 314, 438 A.2d at 400

 Plaintiffs’ next argue that the commissioners erred by giving defendant first right of assignment, improperly considering the parties’ ability to buy out the other in making this determination.  As in Nystrom v. Hafford, the findings about the parties’ relative abilities to timely buy out each other’s interests are appropriate equitable considerations. 2012 VT 60, ¶ 17

 Because. the challenged findings are not clearly erroneous, we need not and do not address whether Rule 53(e)(2) permits a party to object to a report following the report’s delivery to the trial court where the party did not reserve a right to object in the first instance.

Finally, plaintiffs request a remand to redetermine the property’s value because of purported changes in the real-estate market. Plaintiffs fail to cite where this argument was preserved and cite no case or other legal authority in support. Accordingly, we will not review it. V.R.A.P. 28(a)(4)(A) (requiring litigant to demonstrate how issues were preserved and to support argument with citations to authorities and parts of record relied upon); see Kneebinding, Inc. v. Howell, 2020 VT 99, ¶ 61, 213 Vt. 598, 251 A.3d 13 (Mere naked statements, unsupported by argument or citation of authorities, constitute inadequate briefing and merit no consideration.)

 Affirmed.

How cited

Long term leasehold interests are subject to both statutory and equitable partition in a case seeking to divide property of unmarried cohabitants.

Wynkoop v. Stratthaus. 2016 VT 5 (filed January 15, 2016)

DOOLEY, J. The parties to this appeal are co-lessees in a thirty-year ground lease for a ten-acre parcel of land The parties constructed improvements on the land and shared the parcel as unmarried cohabitants Upon termination of their relationship, plaintiff sought partition the property under 12 V.S.A. § 5161 and compensation for ouster under 12 V.S.A. § 4765. Defendant appeals the trial court's property division and compensation to plaintiff. We reverse in part and affirm in part.

On appeal, defendant claims the leasehold is not real property subject to partition under 12 V.S.A. § 5161; and that the court erred in calculating the parties' contributions to the project; We affirm the trial court's judgment with respect to the applicability of the partition statute to the leasehold. We reverse and remand for the court to correct errors in its calculation of the parties' respective contributions and to value the property and determine the partition remedy.

All, or virtually all, decisions that have considered the question before us have held that partition is available for leasehold interests. Based on our own analysis, as well as the precedents from other jurisdictions, we hold that plaintiff could seek partition under 12 V.S.A. § 5161.

There is, however, an alternative remedy applicable to the situation in which plaintiff is left. Partition is both an action at law, pursuant to the statute, and a remedy in equity that came to us as part of the English legal system a court could partition a leasehold interest under the court's equitable powers, In applying partition then, we have relied on equitable partition and not the action at law known as statutory partition. While there may be multiple reasons for proceeding this way in particular cases, the overall rationale applicable to property division for unmarried partners in marriage-like relationships is that we must consider all relevant circumstances to ensure that complete justice is done.

Thus, even if § 5161 did not apply because the parties have a leasehold interest and not ownership in fee, we would hold that partition in equity is the proper remedy.

Equitable partition can follow its own flexible procedures, and the court is not bound by those in the statute, including the use of commissioners. We conclude that appointment of commissioners is particularly inappropriate and unnecessary in a case like this because they add cost to the process, the value of the property is relatively small, and the role of the commissioners is very limited. Thus, we conclude that in this case the trial court should value the property and not refer valuation to commissioners. Once the court has valued the property, it should determine and order the partition remedy, either by assigning the property to plaintiff with a pay-off to defendant or sale of the property with distribution of the proceeds according to the percentage shares of the parties. If a sale is ordered, the court may appoint commissioners to sell the property.

In summary, we hold that he superior court has jurisdiction over this case based on the common leasehold interest of the parties. This case is appropriately an equitable partition case to be adjudicated under the equitable principles and procedures of a normal civil case.  The superior court should proceed to fashion a remedy without use of commissioners except, if necessary, for purposes of sale of the property.

EATON, J., concurring. I agree with the majority's conclusion that equitable partition, in addition to statutory partition, is part of the law of Vermont and that in reaching an equitable division of the parties' property, the court could employ equitable partition under the facts of this case. In my view, 12 V.S.A. § 5161 does not apply in this instance, making equitable partition available and appropriate.

Because the majority relies upon equitable partition, the historical overview of statutory partition is largely unnecessary to the result. I am also not convinced that statutory partition is available in this case, and to the extent the majority holds that statutory partition provided any authority for the court to partition the leasehold interest, I disagree

Partition, whether employed under the statutory framework, or as a part of the court's equitable powers, is cumbersome, potentially expensive, and time-consuming. Using it with every division of a leasehold interest that comes before the court in a divorce or civil proceeding among unmarried cohabitants, would be unwise and unworkable. In long-term lease situations, however, or those where valuation of the leasehold is particularly difficult, it should be one of the tools available to the trial court, in its discretion, in discharging its obligation to divide the parties' property in an equitable manner.

I concur with the outcome reached by the majority, and agree with its analysis of the issues, except as to the applicability of 12 V.S.A. § 5161

Partition.. Discretion to depart from equal shares

Currie v. Jané, 2014 VT 106 (05-Sep-2014)

ROBINSON, J. Plaintiff challenges a partition order reflecting the trial court’s conclusion that defendant had an 81.7% interest in the home that plaintiff and defendant purchased together, and applying various setoffs for contributions to the maintenance of the home after the parties purchased it. We affirm.

Plaintiff suggests that where the deed titles property to joint tenants with rights of survivorship, the presumption of equal ownership interests is conclusive. We disagree. The presumption reflected in 27 V.S.A. § 2(b)(2)(A) is an evidentiary presumption, subject to rebuttal. See, e.g., Whippie, 2010 VT 32, ¶ 14 We conclude that the trial court’s finding that the parties intended to own the property in a 81.7% to 18.3% proportion was amply supported by its findings and the underlying evidence.

Plaintiff next argues that the trial court’s requirement that plaintiff pay defendant $158,144 to buy out his interest is clearly erroneous and inequitable. We review the trial court’s assessment of equitable remedies, like partition, for abuse of discretion, and will uphold the trial court’s judgment unless the trial court has withheld its discretion entirely or exercised it “for clearly untenable reasons or to a clearly untenable extent.” Given the extensive debt and additional expenses built up by the parties in connection with, or attached to, the property, it is no surprise that plaintiff would have to pay more than the value of the property to satisfy her debt to defendant and keep the property. The trial court here considered the appropriate factors, exercising discretion in applying them. Whippie, 2010 VT 32, ¶ 15

Partition. A party who ousts a co-tenant and must account for rental value is entitled to compensation for half of the maintenance costs paid for the entire period, even after ouster.

 Whippie v. O'Connor, 2011 VT 97 (mem.)

This is defendant's second appeal in a partition action brought by his former girlfriend to resolve the parties' respective interests in a house they hold as tenants-in-common. On remand following the first appeal, the trial court determined that defendant had ousted plaintiff from their property and was therefore not entitled to compensation for costs of maintenance of the property during the ouster period. Defendant argues that the court erred in failing to properly account for plaintiff's failure to pay towards maintenance of the property during the ouster period. We agree, and reverse and remand.

Our law on joint tenancies, 27 V.S.A. § 2(b)(2)(A), establishes a statutory presumption that joint tenants will share equally. Therefore a cotenant who pays necessary maintenance costs associated with jointly owned property is entitled to a setoff for the other tenant's portion of those costs.  The great weight of authority is that ousted tenants are entitled to the reasonable rental value of their portion of the property only if they are also responsible for "their share of the necessary property maintenance expenses after ouster.  Such a rule comports with the equitable nature of a partition action and encourages responsible use by the occupying tenant.  It is reasonable that ousted tenants remain obligated to contribute to maintenance costs because these are required to preserve the property, which is in the interest of all tenants.  Thus, we conclude that defendant was entitled to compensation for half of the maintenance costs he paid for the entire period, even after the ouster.