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  1. #1
    Mikaman is offline Junior Member
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    Question Partition order questions

    What is the name of your state? PA

    My brother & I own property as Tenants in Common. I am the majority owner, he owns a minority stake. He wants to sell his share. I want to keep the property. We have not been able to agree on a price for me to buy his share. Each of us got appraisals doen by licensed, professional appraisers. Of course, his appraisal came in much higher than mine, and he wants 100% of his appraised value. I offered to split the difference on the two appraisals but he refused.

    He has now filed a partition lawsuit. I am continuing to try to negotiate a settlement, offering more money each time, but he has rejected every offer so it looks like we are headed to trial. Yes I have a lawyer, so does he.

    My questions are, what are the mechanics of the sale, if this thing goes to court? My lawyer's answers have been vague and hard to understand. I am beginning to suspect that my lawyer has never actually taken a partition case to court.

    1) Does the judge have any options, other than simply ordering the public sale of the property? i.e. can the judge order my brother to accept the average of the two appraisals? Or can the judge order a new, unbiased, 3rd party appraisal and force my brother to accept an offer from me at that price? Or can the judge review the evidence and decide upon a fair price?

    2) My attorney said "the judge will have to dissolve the Tenancy-in-Common before he can order a sale, and it's unlikely that he would do that." I understand Tenants in Common, but I don't understand the legal meaning of "dissolving" the Tenancy in Common. What does it mean, and is it truly unlikely?

    3) If the judge orders a sale, what procedure is used for the sale? An open, public auction (list it in paper, specific date & time, whoever shows up can bid, high bid gets property?) If so, I could just attend the auction and buy it myself, if I'm willing to out-bid the other buyers. OR -- would it be a closed, sealed-bid auction? That would be troublesome for me. OR -- would the judge order it to be listed with a realtor?

    4) If judge orders it to be listed with a realtor, who makes the decisions like asking price, whether to accept a lower offer, whether to lower the asking price if property doesn't sell quickly, etc etc? Does the court make those decisions? Or does the court appoint some sort of Trustee to do that? It surely would not work to order my brother & I to make these decisions jointly.

    Any advice greatly appreciated ...

    Mikaman
  2. #2
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by Mikaman
    What is the name of your state? PA

    My brother & I own property as Tenants in Common. I am the majority owner, he owns a minority stake.
    And how did you come to this conclusion?
    He wants to sell his share. I want to keep the property. We have not been able to agree on a price for me to buy his share. Each of us got appraisals doen by licensed, professional appraisers. Of course, his appraisal came in much higher than mine, and he wants 100% of his appraised value. I offered to split the difference on the two appraisals but he refused.
    Completely within his rights.
    He has now filed a partition lawsuit. I am continuing to try to negotiate a settlement, offering more money each time, but he has rejected every offer so it looks like we are headed to trial. Yes I have a lawyer, so does he.
    O.K. as my brother would say, you can negotiate until you both reach the last step into the courthouse...then it's GO time.
    My questions are, what are the mechanics of the sale, if this thing goes to court? My lawyer's answers have been vague and hard to understand. I am beginning to suspect that my lawyer has never actually taken a partition case to court.
    No one here can walk you through all of the twists and turns. The basics are provide proof that you and he own the land, that one of you wants to sell and the other does not and let the court sell the property.
    1) Does the judge have any options, other than simply ordering the public sale of the property?
    Not really.
    i.e. can the judge order my brother to accept the average of the two appraisals?
    Of course not.
    Or can the judge order a new, unbiased, 3rd party appraisal and force my brother to accept an offer from me at that price?
    Yes.
    Or can the judge review the evidence and decide upon a fair price?
    yes.
    2) My attorney said "the judge will have to dissolve the Tenancy-in-Common before he can order a sale, and it's unlikely that he would do that." I understand Tenants in Common, but I don't understand the legal meaning of "dissolving" the Tenancy in Common. What does it mean, and is it truly unlikely?
    It means that the piece of property would be sold as a whole and the proceeds split according to ownership interest.
    3) If the judge orders a sale, what procedure is used for the sale? An open, public auction (list it in paper, specific date & time, whoever shows up can bid, high bid gets property?) If so, I could just attend the auction and buy it myself, if I'm willing to out-bid the other buyers. OR -- would it be a closed, sealed-bid auction? That would be troublesome for me. OR -- would the judge order it to be listed with a realtor?
    That is a mechanics question and no one can answer that. except yes, anyone will be allowed to bid on the property.
    4) If judge orders it to be listed with a realtor, who makes the decisions like asking price, whether to accept a lower offer, whether to lower the asking price if property doesn't sell quickly, etc etc? Does the court make those decisions? Or does the court appoint some sort of Trustee to do that? It surely would not work to order my brother & I to make these decisions jointly.

    Any advice greatly appreciated ...

    Mikaman
    this last most likely won't happen. But again, that's a question only the judge can answer.

    This is why you negotiate until you enter the courtroom. Most likely you will NOT receive what you want for your portion of the land and neither will he since out of the sale you will both be taxed with court costs, legal fees and sales cost.

    That's why you need to weigh how much this is going to cost you to proceed and how much you THINK you are overpaying...and see which one weighs more. Oh, and by the way, such a case isn't usually decided in one trial or one week. This could drag on for years.
  3. #3
    Mikaman is offline Junior Member
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    Smile Couple more questions if I may ... thanks!

    THANKS a ton BelizeBreeze! Wish my attorney was as clear & concise as you.

    In answer to your question "My brother & I own property as Tenants in Common. I am the majority owner, he owns a minority stake. -- And how did you come to this conclusion?" The deed for the property specifically states the ownership percentages. The percentage was determined when we bought the property, I contributed more money than he did when we bought it and we (the lawyers actually) recorded this in the deed itself. I have a copy.

    I have spent hours searching "partition" on this forum and reading the previous posts, wow there are a lot, I have learned a lot and mostly learned what questions I need to ask my lawyer. If y'all would be so patient, two other questions come to mind right now, before my next meeting with attorney --

    1) A few years ago, a contractor constructed a substantial addition to the house. At the time my brother did not have any funds to pay for this, so I paid for the addition 100% myself. We never discussed how this might affect our ownership percentage if/when the property is sold, and we did not change the ownership percentages in the deed. I have suggested to bro' that we should now take this into account in determining a fair settlement -- I should get "credit" for the addition, somehow -- perhaps based on the cost that I paid, or an appraiser's view of the added value of the property due to this addition. Bro' refuses to consider this in our negotiations thus far. Will the court consider this in determining who gets how much of the sales proceeds? Or will the court simply split the proceeds based on the ownership percentages in the deed? Could I file a lien against the property for the cost of the porch?

    2) I have done all the maintenance on the property (yes, I know, this appears in most of the posts on partitions ... ) Some of this I would characterize as normal upkeep, and some things were more like improvements & small additions to the property. My brother has done no maintenance or improvements. Can the court take this into account in determining who gets how much of the proceeds?

    I think these questions both relate to something called "equity interest" but I don't understand that legal term. Again, any advice would be cheerfully appreciated!

    BTW, for anyone else reading this, a lot of people have asked about the cost of filing a partition suit. I have spent about $10,000 defending myself so far, and my attorney estimates another $15,000 to $30,000 if this goes to trial, and tells me that the plaintiff's (brother) attorney fees will probably be similar. And this is a fairly straightforward case, I am told. This is just FYI for others. Yes I have offered bro' $25k above my appraiser's fair market value of the property to settle this thing and avoid paying that much to the attorneys, but bro' has refused that offer. He thinks he will get even more in a court-ordered sale.

    Mikaman
  4. #4
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by Mikaman

    1) A few years ago, a contractor constructed a substantial addition to the house. At the time my brother did not have any funds to pay for this, so I paid for the addition 100% myself. We never discussed how this might affect our ownership percentage if/when the property is sold, and we did not change the ownership percentages in the deed. I have suggested to bro' that we should now take this into account in determining a fair settlement -- I should get "credit" for the addition, somehow -- perhaps based on the cost that I paid, or an appraiser's view of the added value of the property due to this addition. Bro' refuses to consider this in our negotiations thus far. Will the court consider this in determining who gets how much of the sales proceeds? Or will the court simply split the proceeds based on the ownership percentages in the deed? Could I file a lien against the property for the cost of the porch?
    You cannot file a lien if you have no contractural obligation agreed to by your brother. Unless you wish to file the lien against BOTH property owners. Still, you would have to show an obligation on the part of both property owners which you cannot.

    As to the addition and property ownership interest. That's a bit more complicated. In a normal situation where ownership is not detailed in the deed, it is assumed that each holder as tenants in common, own 50% (or the appropriate percentage based on the number of owners) share in the property.

    However, your deed specifically stipulates the percentage of ownership interest. Whether or not a judge would adjust the deed is a matter of fact which must be tried on the evidence.

    2) I have done all the maintenance on the property (yes, I know, this appears in most of the posts on partitions ... ) Some of this I would characterize as normal upkeep, and some things were more like improvements & small additions to the property. My brother has done no maintenance or improvements. Can the court take this into account in determining who gets how much of the proceeds?
    Yes they can. WILL they is a matter for trial.
    I think these questions both relate to something called "equity interest" but I don't understand that legal term. Again, any advice would be cheerfully appreciated!
    As stated above, equity (or ownership) interest relates to not only monitary contributions but also physical contributions to the increase in value of the property in question. For example, if one party makes all mortgage payments in a typical TC ownership relationship, the court can and usually does give credit for such in it's division of ownership rights.

    Whether or not such would relate to normal upkeep and additions to the structure again, is a question of fact for the court to decide.
    BTW, for anyone else reading this, a lot of people have asked about the cost of filing a partition suit. I have spent about $10,000 defending myself so far, and my attorney estimates another $15,000 to $30,000 if this goes to trial, and tells me that the plaintiff's (brother) attorney fees will probably be similar. And this is a fairly straightforward case, I am told. This is just FYI for others. Yes I have offered bro' $25k above my appraiser's fair market value of the property to settle this thing and avoid paying that much to the attorneys, but bro' has refused that offer. He thinks he will get even more in a court-ordered sale.

    Mikaman
    He could. But based on the facts presented, I highly doubt it. In fact, from only the facts presented, you BOTH stand to lose more than if the deal were made today.
  5. #5
    Mikaman is offline Junior Member
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    Thanks!

    BelizeBreeze, THANKS so much for your clear advice! You are a cool breeze for sure!

    Mikaman

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