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Capital Finance Company of Delaware Valley, Inc. v. Asterbadi

2006 WL 475318, (N.J. Super. Ch. Div. 2006) (Unpublished)

PARTITION; REMEDIES—Partition, an available remedy for a tenancy-in-common, is an equitable remedy and requires a balancing of the equities.

When a Sheriff’s sale deed to a husband and wife is silent as to the specific estate created in the property, a tenancy by the entirety is created. To create either a tenancy in common or a joint tenancy with the right of survivorship, the deed must explicitly state such intent. Partition is an equitable remedy, requiring the balancing of the equities of the co-tenants. However, in a tenancy by the entirety (which only exists between a husband and wife), each co-tenant possesses the right of survivorship, and partition is inequitable when it would destroy the right of survivorship.

In this case, a husband and wife acquired title to property through a sheriff’s sale. The deed did not indicate that the transfer was to joint tenants with the right of survivorship, nor did it state that a tenancy in common was created, merely that title was vested in their two names. Consequently, they took title as tenants by the entirety. In an tenancy by the entirety, both the husband and wife have a right of survivorship.

A judgment creditor subsequently purchased the husband’s interest in the property at a second sheriff’s sale. Because title to the property was held by the husband and wife as tenants by the entirety, the judgment creditor’s acquisition of the husband’s interest could not extinguish the wife’s right of survivorship. Thus, the acquisition by the judgment creditor created a “tenancy in common with the right of survivorship.”

Partition is an available remedy to a tenant in a tenancy in common. However, partition is an equitable remedy and requires a balancing of the equities of the co-tenants. Here, the property in question was a summer home, and the Court found there could be no real shared use of a summer home between the judgment creditor and the debtor’s spouse. Consequently, the judgment creditor was deprived of all use and possession of the property. However, partition is not appropriate where, as here, it would destroy the debtor’s spouse’s right of survivorship. In balancing the equities, the Court found that the judgment creditor had other remedies that could be enforced. It ordered: (1) an accounting by the debtor’s spouse; (2) that the judgment creditor and the debtor’s spouse establish a fair rental value for the summer home which would form the basis of the debtor’s spouse’s obligation to the judgment creditor; and (3) that the judgment creditor had to offset this obligation by its own share of costs and taxes associated with the property.


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