Real Property Law

Partition Action Subject To Evaluation of Equities Between Parties

Arata v. Behling

NYLJ 1/12/09, p. 32, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In an action for partition of real property, the plaintiff co-tenant appealed from the Supreme Court's denial of his summary judgment motion. The Appellate Division affirmed, holding that the remedy of partition is subject to an evaluation of the equities between the parties.

From 1992 to 2005, the plaintiff co-tenant's father co-owned the subject property, as joint tenants, with his long-time companion, defendant Behling. On Jan. 31, 2005, the father conveyed his interest in the property to the plaintiff, reserving a life estate. Then, on July 29, 2007, the father executed a document releasing his life estate in the subject property.In September 2007, the plaintiff brought this action seeking partition and sale of the subject property. When the plaintiff sought summary judgment, the Supreme Court denied the motion, and plaintiff appealed.

In affirming, the Appellate Division started by citing RPAPL section 901, which makes a partition action available to a joint tenant or a tenant in common. But the court then went on to hold that the remedy of partition “is always subject to the equities between the parties.” In this case, the court conceded that the plaintiff had demonstrated his ownership of and right to possession of the subject property, but also held that because defendant Behling had raised issues of fact about whether the equities favored her position, The Supreme Court properly denied the plaintiff co-tenant's summary judgment motion.

Partition Action Subject To Evaluation of Equities Between Parties

Arata v. Behling

NYLJ 1/12/09, p. 32, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In an action for partition of real property, the plaintiff co-tenant appealed from the Supreme Court's denial of his summary judgment motion. The Appellate Division affirmed, holding that the remedy of partition is subject to an evaluation of the equities between the parties.

From 1992 to 2005, the plaintiff co-tenant's father co-owned the subject property, as joint tenants, with his long-time companion, defendant Behling. On Jan. 31, 2005, the father conveyed his interest in the property to the plaintiff, reserving a life estate. Then, on July 29, 2007, the father executed a document releasing his life estate in the subject property.In September 2007, the plaintiff brought this action seeking partition and sale of the subject property. When the plaintiff sought summary judgment, the Supreme Court denied the motion, and plaintiff appealed.

In affirming, the Appellate Division started by citing RPAPL section 901, which makes a partition action available to a joint tenant or a tenant in common. But the court then went on to hold that the remedy of partition “is always subject to the equities between the parties.” In this case, the court conceded that the plaintiff had demonstrated his ownership of and right to possession of the subject property, but also held that because defendant Behling had raised issues of fact about whether the equities favored her position, The Supreme Court properly denied the plaintiff co-tenant's summary judgment motion.