PARTITION - IT JUST DIDN'T WORK OUT

Not all homes are owned by husband and wife. Some are owned by couples in a relationship, romantic or business or otherwise. And sometimes these relationships do not work out and the home must be sold.

Weng v. Zhao, 2019 NY Slip Op 50007 - NY: Supreme Court Kings County 2019:

""A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners" (RPAPL 901 [1]). The right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties (Tsoukas v Tsoukas, 107 AD3d 879, 889 [2nd Dept 2013] citing, Pando v Tapia, 79 AD3d 993, 995 [2nd Dept 2010]; see also Stressler v Stressler, 193 AD2d 728 [2nd Dept 1993]). Thus, partition may be precluded by the equities presented in a given case (Ferguson v McLoughlin, 184 AD2d 294 [1st Dept 1992]).

The right to partition is absolute in the absence of countervailing conditions, and therefore, such issues as the interest of the parties and whether partition may be had without great prejudice should first be determined (Bentley v Dox, 12 AD3d 1187 [4th Dept 2004]).

An award of summary judgment on a claim for partition is established only where the movant demonstrates its ownership interest and a right to possession under a deed or other instrument of conveyance, favorable equities and that a physical partition cannot be made without great prejudice in cases wherein a sale is demanded (see Tsoukas, 107 AD3d 879, supra Arata v Behling, 57 AD3d 925 [2nd Dept 2008]).

Weng has made a prima facie showing of entitlement to judgment as a matter of law by submitting a copy of the duly-executed deed demonstrating Weng's ownership and the right to possession of the subject property as a joint tenant with Zhao."