Summary
The Utah Supreme Court addresses whether jointly owned real property containing a family cabin should be partitioned in kind with an equalizing payment, or sold at public sale. The court holds that partition in kind with owelty should be explored before ordering a sale and reverses the summary judgment ordering public sale. The case is remanded for further proceedings to assess reasonable alternatives to sale.
Topics
Practice areas
Questions Presented
- Whether the trial court erred by ordering a public sale rather than fully exploring partition in kind with an owelty payment.
- Whether Utah's partition statutes require cotenants to receive like-kind property before partition in kind may be ordered.
- Whether summary judgment was proper when the feasibility of constructing a cabin on the undeveloped lot and other alternatives to public sale had not been fully explored.
Holdings
- Utah's partition statutes and case law do not require each cotenant to receive like-kind property. An unequal partition in kind may be made equitable through an owelty payment.
- A public sale should be a last resort when cotenants have strong attachments to the property and a potentially practicable partition in kind has not been fully explored.
- Summary judgment ordering a public sale was improper because the feasibility of partition in kind with owelty and other reasonable alternatives had not been fully explored.
Key quotations
“This statute presumes that when a cotenaney must be terminated, partition in kind is the proper remedy unless such partition cannot be made without great prejudice.” (at 211)
“Since both parties have a strong sentimental attachment to the property, and both desire to retain an interest in it, a public sale should be a last resort.” (at 212)
Factual background
The parties were cotenants of family property in Wasatch County consisting of three surveyed lots, including a family cabin on Lot 1 and an undeveloped Lot 3. The parties disputed the use, maintenance, and repair of the cabin, and the Clawsons sought a public sale because the property could not allegedly be divided equally without great prejudice. The Silvers proposed partitioning the property in kind and compensating the party receiving the less valuable property through owelty. Evidence indicated that a cabin might be built on Lot 3 if subdivision, water, sewer, access, and other requirements could be satisfied.
Procedural history
The Clawsons brought an action seeking partition by public sale of Lots 1 and 3. The Silvers opposed the sale and proposed partition in kind, with Lot 1 and its cabin awarded to them and an owelty payment made to equalize the value. The trial court rejected that proposal, granted summary judgment for the Clawsons, and ordered a public sale. The Utah Supreme Court reversed and remanded for further consideration of partition in kind and other alternatives to sale.
Remand instructions
The trial court must explore, with the parties and any appointed referees, whether a cabin can be built on Lot 3, whether adjoining property can be purchased to enlarge the lot if necessary, and whether any other reasonable alternatives to public sale exist. If feasible, the court should consider partition in kind awarding one party the cabin and the other Lot 3 with an owelty payment.