19. Who will prevail?

The sister brought an appropriate action to partition the land and proposed that a two-acre rectangular lot with 100 feet of frontage be set off to her and that a one-acre rectangular lot with 50 feet of frontage be set off to the brother. The brother's defense included a demand that the land be sold and its proceeds be divided one-third to the brother and two-thirds to the sister.

A brother and sister owned the land as tenants in common, the brother owning a one-third interest and the sister owning a two-thirds interest. Neither of them owned any other real property.

A rectangular parcel of undeveloped land contained three acres and had 150 feet of frontage on a public street. The applicable zoning ordinance required that a buildable lot contain at least two acres and have frontage of not less than 100 feet on a public street.

The brother, because partition by sale is the preferred remedy, unless a fair price is not the likely result of a sale
The brother, because the zoning ordinance makes it impossible to divide the land fairly
The sister, because partition by sale is not appropriate if the subject property can be physically divided
The sister, because the ratio of the two lots that would result from her proposal conforms exactly to the ownership ratio

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The state may enact statutes to reasonably control the use of land for the protection of the health, safety, morals, and welfare of its citizens. Zoning is the division of a jurisdiction into districts which certain uses and developments are permitted or prohibited. The zoning power is based on the state's police power and is limited by the Due Process Clause of the Fourteenth Amendment.

All tenants in common hold an individual, undivided ownership interest in the property. This means that each party has the right to alienate or transfer the ownership of, her ownership interest. This can be done by deed, will, or other conveyance. The interests in a tenancy in common need not be equal. A tenant in common may bring an action to partition the property. Partition in kind, in which there is a physical division of the common property, is preferred; however, a partition by sale is allowed when a fair and equitable physical division of the property is impossible. Upon partition of the property, each co-tenant will receive either the ownership ratio in the land if the partition is in kind (in which case the land is physically divided) or the ownership ratio in the proceeds if the partition is by sale.

B is correct. The applicable zoning ordinance requires a frontage of 100 feet on a public street in order to build. Although the subject property can be physically divided, it would not be fair or equitable to convey only 50 feet of frontage to the brother, who then could not build on his lot.

A is incorrect. This option correctly notes that the brother will prevail, but misstates the reasoning, as explained above.

C is incorrect. It would not be fair or equitable to convey only 50 feet of frontage to the brother, who then could not build on his lot, so it should be sold.

D is incorrect. The applicable zoning ordinance will not allow the brother to build on his lot according to the proposal, and thus partition in kind would not be fair or equitable. The property can be sold, and one-third of the proceeds can be given to the brother and two-thirds of the proceeds given to the sister.

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19. Who will prevail?

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