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Bracco v. Estate of Oreto

A-1007-06T5 (N.J. Super. App. Div. 2007) (Unpublished)

CO-TENANCIES; PARTITION — Equitable partition between co-tenants is a well settled matter of law and such a right is based on legal or equitable title, and not on the right of immediate possession.

A homeowner and his friend, a co-owner, bought a house near the beach for investment purposes and for use on weekends. The deed listed them as tenants in common and both made equal contributions towards the down payment and closing costs. Nearly three years following the purchase of the house, both owners took up permanent residence in the house. Soon afterwards, the homeowner and the co-owner began to encounter difficulties in their relationship. The co-owner had difficulty maintaining steady employment and also developed alcohol and substance abuse problems, at which point the homeowner began to solely pay the mortgage, property taxes, insurance, and all additional expenses including improvements on the property. The co-owner’s problems persisted for many years. He left the house at various times including for a stay at a rehabilitation center but never resumed steady employment or stopped his problem drinking when he returned to the house to live. Following a failed attempt on the part of the homeowner to have the deed amended to list the owners as joint tenants with the right of survivorship, the co-owner moved out of the house. Roughly two years later, the co-owner showed up at the house intoxicated and the two owners began to argue. The co-owner attacked the homeowner with a brass object and threatened him with a knife. The police arrived and arrested both men, but no charges were ever filed. The homeowner obtained a restraining order barring the co-owner from contacting him or from showing up at the house. All contact between the two stopped.

Nearly ten years later, the homeowner got married and lived at the house with his wife. Little more than one year afterwards, his co-owner died intestate. The co-owner’s father became the administrator of estate, from which many debts were owed. The homeowner then brought an action seeking to clear title to the property. The estate counterclaimed for a declaration that it was entitled to a one-half share of the property. The lower court found that the estate, having succeeded the co-owner, was a tenant in common and was entitled to a one-half interest in the property. After offsets for expenditures made by the homeowner and an imputed management fee, the court awarded the estate less than one third of the property’s value and ordered the estate to transfer its interest in the property to the homeowner, subject to a lien for the amount of the award. The homeowner’s request for attorneys’ fees was denied.

On an appeal brought by the homeowner, the Court noted that a lower court’s determination on partition is a matter of equity and that such decisions are not to be set aside unless they are shown to be arbitrary, capricious or unreasonable. Here, the Court upheld the estate’s right to seek its undivided interest in the co-owner’s share of the property through partition. It pointed out that such a right is a well settled matter of law and that such a right is based on legal or equitable title and not on the right of immediate possession. The Court also pointed out that the homeowner had a reciprocal right to seek partition of the property. It found that the attempt to convert the tenancy from a tenancy in common to a joint tenancy had failed because the co-owner never signed the newly prepared deed and that the homeowner’s attempt to apply the co-owner’s earlier oral agreement to convert the deed was not admissible. The Court also refused to question the equitable assessments of the lower court and found that the lower court handled the calculations of the offsets correctly and fairly. It noted that the lower court imputed a management fee for the homeowner’s upkeep of the house and that he enjoyed fourteen years of exclusive residence and enjoyment of the house. The Court also upheld the lower court’s denial of attorneys’ fees for the homeowner because no statutory authority existed for his request and his claim did not fall into one of the few exceptions in which counsel fees could have been awarded. All of the lower courts findings were affirmed.


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