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21. In that action, the court should
The sister brought an appropriate action against her brother for partition. The brother asserted all available defenses and counterclaims.
The period of time to acquire title by adverse possession in the jurisdiction is 10 years. There is no other applicable statute.
Recently, the sister needed money to run her business and demanded that her brother join her in selling Blackacre. He refused.
A brother and a sister acquired title in fee simple to Blackacre, as equal tenants in common, by inheritance from their aunt. During the last 15 years of her lifetime, the aunt allowed the brother to occupy an apartment in the house on Blackacre, to rent the other apartment in the house to various tenants, and to retain the rent. The brother made no payments to the aunt; and since the aunt's death seven years ago, he has made no payments to his sister. For those 22 years, the brother has paid the real estate taxes on Blackacre, kept the building on Blackacre insured, and maintained the building. At all times, the sister has lived in a distant city and has never had anything to do with the aunt, her brother, or Blackacre.
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There are two general types of partitions. The first is a partition in kind, which is a physical division of the property. The court determines how to divide the property based on the ownership interest of each tenant in common.
The second type of partition is a partition by sale. Through this process, the court orders the sale of the property, even if any of the co-tenants oppose selling their share. Before any proceeds from the sale may be distributed to the co-tenants, however, the court must determine if any contributions are owed. Specifically, any tenant who has paid for things like repairs, taxes, or improvements must first be re-paid. And if any co-tenant has benefitted from third-party rents, the other co-tenants' proceeds will be increased to account for that extra profit. In other words, the court distributes the share of the profits to each co-tenant in relation to their ownership interests, and an accounting will be done of costs and profits.
Adverse possession is the passing of title to someone who actually possesses property openly, notoriously, visibly, continuously, and in a hostile manner for the requisite statutory period of time.
C is correct. As tenants in common, the brother and sister each have a distinct, undivided interest in Blackacre and either may invoke the right to judicial partition. The sister's action against her brother is for partition by sale, which allows her to obtain a court order to sell the property, even if the brother does not wish to sell. The fact that the brother paid taxes, maintained insurance, and kept up with improvements over the years means that he expended both time and money, and he will be owed contribution. He also received rent money from tenants during the period of tenancy in common with his sister, which will be taken into consideration. By contrast, the sister has an equal undivided interest by right. Therefore, this answer choice is a proper application of the law to these facts because, although the sister may execute a partition by sale, there must be an accounting of the various expenses and profits for both parties so that each co-tenant walks away with proceeds commensurate with their equal interests.
A is incorrect. A judicial partition is a right held by tenants in common, which means the court may not deny the sister's request for partition. Furthermore, the brother's unwillingness to sell is of no consequence because a partition by sale is done even if the parties are not in agreement.
Adverse possession does not apply for several reasons, including that the brother is a tenant in common, not a party who is on the property without permission, i.e., hostile. He and his sister share an equal concurrent interest in the property. Nor was the time he spent on the premises prior to inheriting it hostile because his aunt had granted him permission to occupy it.
B is incorrect. This answer is only partially correct. As explained above, tenants in common can always move for partition as an absolute right, unless they have explicitly waived that right. The sister's invocation of her right to partition by sale should thus be granted by the court and an accounting must be done to ensure that their proceeds take into consideration any rental payments, paid taxes, insurance, and maintenance costs.
D is incorrect. This answer is also only partially correct. The court should grant partition to the sister, but an accounting is also necessary because tenants in common who participate in a partition by sale are entitled to proceeds in accordance with any debts or profits experienced during their co-tenancy.