Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

KickerFeaturesTopicsCommercial LawSectionsNewsLJN NewslettersNew York Real Estate Law Reporter

Apportioning Expenses and Benefits Upon Partition

BY Stewart E. Sterk
October 28, 2009

When real property is held by two or more owners as tenants in common, joint tenants, or tenants by the entirety, termination of the cotenancy all too frequently generates litigation about the terms of the termination. Often, the issue is whether the jointly owned property should be partitioned in kind or by sale, but even when the parties agree to sell the property, the same animosity that led to the need for termination generates conflict about how the sale proceeds should be divided. In one recent case, Brady v. Varrone, NYLJ 8/24/09, p. 29., col. 2, the Second Department faced a recurring issue: In a partition action, how much credit should a co-tenant make for expenditures incurred in connection with the jointly owned property?

Brady applies the general rule that a co-tenant who pays more than her proportionate share of expenses attributable to the jointly owned property is entitled to a credit against the sale proceeds payable to other cotenants. In Brady itself, a tenant in common with a one-third share of the property had made one-half of the mortgage payments. The court concluded that the referee had correctly allowed a credit for excess mortgage payments.

In addition to mortgage payments, credit typically is available for tax payments, and for expenditures made to repairs and improve the jointly owned property. Courts have emphasized that a partition action is equitable in nature, and that courts may take equity into account in distributing the proceeds of a partition sale. See, e.g., Worthing v. Cossar, 93 AD2d 515, 517. A set of core equitable principles has emerged about how sale proceeds should be distributed.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models Image

Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.

Hyperlinked Documents: The Latest e-Discovery Challenge Image

As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.

Identifying Your Practice's Differentiator Image

How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.

Risks and Ad Fraud Protection In Digital Advertising Image

The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.

Turning Business Development Plans Into Reality Image

This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.