Asking the Court to Grant Partition and Sale of Jointly-Owned Property

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In a recent case, in which Richard A. Klass, Your Court Street Lawyer, represented one of three owners of real property asked the trial judge to grant ‘summary judgment’ against the other owners, granting his motion to partition and sell the real property at auction. In support of the motion, it was requested that the court grant partition and sale, in accordance with Real Property Actions and Proceedings Law [RPAPL] Article 9.

It was also requested that the court order the distribution of the net proceeds  from the auction sale of the real property to the parties in one-third interests, along with crediting the plaintiff for the moneys paid at closing when the property was first purchased.

RPAPL Section 901 provides that one who holds an interest in real property as a tenant in common may bring an action against the other tenants-in-common for the partition or sale of the property. The action was brought by Plaintiff as a tenant-in-common against the other two owners. The Plaintiff had to prove the following:

A: Plaintiff is ‘seised’ with an interest in the Property:

In the action, there was no issue of fact that Plaintiff had a right to possession of the property as a co-tenant, which is all that is needed to maintain an action for partition and sale. See, Dalmacy v. Joseph, 297 AD2d 329 (2d Dept. 2002). He was one of the three owners of the property, as indicated on the face of the Deed.

Pursuant to RPAPL 915, it was requested that the court issue an Order determining the parties’ rights, shares, and interest in and to the property.

B: Physical partition would be prejudicial:

Then, the plaintiff had to show that the property could not be physically partitioned in order to sell the entire property as one. In that case, a physical partition of the house would not have been practical and without prejudice to the owners, given that it was a three story brownstone. See, e.g. Cheslow v. Huttner, 13 Misc.3d 1224(A) (Sup. Ct., NY Co. 2006) (physical partition of a townhouse would be greatly prejudicial to the owners); Donlon v. Diamico, 33 AD3d 841 (2d Dept. 2006) (plaintiff established her entitlement to summary judgment directing the sale of the property because partition alone could not be made without great prejudice to the owners).

Based upon RPAPL 915, where it would be prejudicial to the owners to physically partition the property, the court should direct the property to be sold.

C: Plaintiff should be credited for the down payment:

Since partition, although statutory, is equitable in its nature, the court may compel the parties to do equity between themselves when adjusting the proceeds of the sale. Oliva v. Oliva, 136 AD2d 611. It has been held that a court may consider, among its factors of considering the equities of the partition and sale action, the down payment made by a co-tenant. Perrin v. Harrington, 146 AD 292.

R. A. Klass
Your Court Street Lawyer

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Plaintiffs Should Be Permitted to Amend the Complaint Pursuant to CPLR 3025

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Civil Practice Law and Rules [CPLR] Section 3025 authorizes the amendment of a pleading in an action, including the Complaint of the plaintiff. According to subsection (b) of CPLR 3025, leave of court is needed to amend a pleading once issue has joined; however, it should be freely given to a party.

New York courts have held that, in the absence of prejudice to the defendant, the amendment of a pleading should be freely granted by a court. See, Kushner v. Queens Transit, 97 AD2d 432 (2d Dept. 1983); Sotomayor v. Princeton Ski Outlet Corp., 199 AD2d 197 (1st Dept. 1993). It is also well established law that a motion to amend a pleading should be freely given absent a showing by an opposing party of surprise or prejudice. Zacher v. Oakdale Islandia Ltd. Partnership, 211 AD2d 712 (2d Dept. 1995); Santori v. Met Life, 11 AD3d 597 (2d Dept. 2004).

In a recent case litigated by Richard A. Klass, Your Court Street Lawyer, it was urged that, since the action had not been pending for a significant period of time, and was not on the eve of trial, no prejudice could be shown by defendants to the amendment of the Complaint. See, e.g., Kopel v. Chiulli, 175 AD2d 102 (2d Dept. 1991). Case law has held that delay in seeking to amend the Complaint does not bar such relief. Haven Associates v. Douro Realty Corp., 96 AD2d 526 (2d Dept. 1983).

Finally, Plaintiff provided the trial court with a copy of the proposed Amended Complaint to be served upon the defendants. See, Anderson Properties Inc. v. Sawhill Tubular Division Cyclops Corp., 149 AD2d 949 (4th Dept. 1989).

Your Court Street Lawyer

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Knocking Out Defenses Means They Don’t Get Up!

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The Executor of the estate of a man who owned a mixed-use building in Brooklyn sold it to someone for $700,000. As part of the sale, the Executor agreed to take back two mortgages on the property from the buyer in favor of the decedent’s wife, the beneficiary of the estate.

The buyer (and now building’s owner) defaulted on the mortgages by failing to make payments on them to the beneficiary/lender. At that point, the mortgagee turned to Richard A. Klass, Your Court Street Lawyer, for legal assistance to commence foreclosure proceedings on the two mortgages against the buyer.

Once the foreclosure proceeding was brought, the buyer served its “Answer with Affirmative Defenses and Counterclaim.” In general terms, an “affirmative defense” is the legal term for when the defendant in a lawsuit puts forth the reason he is not liable to the plaintiff.

The First Affirmative Defense was that the Summons and Complaint were not properly served upon the defendant according to law, so the court lacked jurisdiction over the person. The Second Affirmative Defense and the Counterclaim alleged that the buyer was coerced into buying the property, having known the decedent and his family for 15 years. The defendant claimed that the conditions of the premises were concealed from it by the plaintiff and it did not have an opportunity to inspect the premises prior to the sale. As a result, the defendant claimed that there exists a defective foundation and water seepage into the basement.

Strike First!

Both federal and state court procedural rules allow for parties to a lawsuit to make requests of the judge to deal swiftly with certain claims or defenses of a litigant. These requests are called “Pre-Answer Motions to Dismiss.” In essence, the party is claiming that the claim or defense has no legal merit whatsoever for a number of reasons and, therefore, that matter should not even proceed forward in the case.

Upon receipt of the Answer with Affirmative Defenses and Counterclaim, Your Court Street Lawyer brought a Pre-Answer Motion to Dismiss the defenses of the defendant (buyer of the building). This Motion challenged the legitimacy of these defenses.

Good service of process:

Attached to the motion papers was a copy of the Affidavit of Service of the Summons and Complaint upon the defendant from a licensed process server. New York law has traditionally held that a process server’s affidavit ordinarily constitutes “prima facie” [at first sight] evidence of proper service. National Heritage Life Insurance Company v. T.J. Properties Co., 286 AD2d 715 [2 Dept. 2001]. A defendant can rebut the process server’s affidavit with a ‘detailed and specific contradiction of the allegations in the process server’s affidavit’ sufficient to create a question of fact warranting a traverse hearing (citing to Bankers Trust Co. of California v. Tsoukas, 303 AD2d 343 [2 Dept. 2003]). However, in this case, the defendant did not deny the process server’s allegations in an affidavit, but only in the attorney’s affirmation (which has no evidentiary value). Also, the defendant failed to timely move to dismiss the case within the 60-day period in which a defendant must move to dismiss on this ground (see, Civil Practice Law and Rules Section 3211(e).

No concealment charges against the Mortgagee:

The mortgagee asked the Judge to dismiss the Second Affirmative Defense and Counterclaim that the buyer was not given the opportunity to inspect the premises before purchase, and thus, should not have to pay the mortgages. The building was sold by the executor of the estate of the deceased person but the mortgages delivered at the closing were in favor of another family member, the beneficiary of the property under the Last Will and Testament.

Using the pre-Answer Motion to Dismiss, the mortgagee pointed out to the judge that the defenses were not permitted because they were directed against the estate, as opposed to the beneficiary of the property. Thus, under Civil Practice Law and Rules Section 3211(a)(6), the claim could not be maintained even though in the form of a counterclaim because it could not properly be asserted against the beneficiary. The Judge noted that the buyer did not join the seller of the property (the estate) as a party and could not bring the claims it was claiming in its defense.

In granting the plaintiff’s motion to dismiss, the Judge held that the defenses and counterclaim of the defendant should be properly dismissed. Kodsi v. 115 Bay Ridge Ave. LLC, Sup. Ct., Kings Co. Index No. 33740/2008, 6/28/2010.

It is very important that, upon receiving an Answer to a lawsuit from a defendant, the plaintiff immediately review the Answer to determine the nature of any defenses and counterclaims, as well as decide whether to ask the judge to “knock ‘em out” right away instead of waiting until trial.

by Richard A. Klass, Esq.
“Your Court Street Lawyer”

R. A. Klass
Your Court Street Lawyer

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Bringing an Action for Specific Performance of a Real Estate Contract of Sale

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Typically, the sale of real estate involves the signing of a contract of sale between the owner of the real estate and the prospective buyer for a certain dollar amount. Each side is eager to close the transaction — the seller wants the money from the closing to purchase another property and the buyer wants to move into the house.

Sometimes, the seller/owner of the real estate attempts to delay or cancel the contract of sale for various reasons, including that another party has come along offering more money to purchase the property than the contract price. The buyer is put into a position of bringing an action to enforce his/her rights under the contract of sale to purchase the property.

The right of the prospective buyer to bring an action for “specific performance” is an important one, which is based upon an old, “common law” theory that real estate is considered a “unique asset,” for which a money judgment against the seller for breach of contract cannot recompense. The courts recognize that a certain piece of real estate cannot be replicated or replaced with another or with money.

The action to force the sale of real estate based upon a breach of contract starts with the filing of a Complaint with the Supreme Court in the county in which the property is located. At or about the same time, the buyer will file a “Notice of Pendency” with the County Clerk. The “Notice of Pendency” or, as commonly known as the “Lis Pendens,” is a document which serves as notice to the entire world that the buyer is laying an equitable claim to the ownership of the property and that an action is pending to determine the buyer’s potential ownership rights therein. Any person who later contracts to purchase the property is effectively “on notice” of the buyer’s claim and is taking substantial risk in proceeding in any transaction with the seller/owner of the real estate.

After the action is filed, the seller will have an opportunity to answer the Complaint. Then, typically, one of the parties will move for “summary judgment,” asking the judge to decide whether there was a breach of the contract of sale and whether the buyer is indeed entitled to the specific performance of the contract of sale. If the judge decides that the buyer is entitled to purchase the property, then the judge will issue an Order directing the seller/owner to proceed to closing and tender a Deed to the buyer.

It is important for the prospective buyer to move quickly to file the Notice of Pendency when it appears that a breach of the contract of sale has or will occur, in order to ensure that there is constructive notice of the action for specific performance; otherwise, the buyer, albeit entitled to money damages, will no longer have the right to the property.

by Richard A. Klass, Esq.
 

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The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

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Article Title:
Bringing an Action for Specific Performance of a Real Estate Contract of Sale

Author Name:
Richard A. Klass, Esq.

Word Count:
481 words

 

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About the Author:
Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] with any questions. Prior results do not guarantee a similar outcome.

Additional articles by Mr. Klass may be found on the firm’s website.
Back issues from Mr. Klass’ quarterly newsletter, Law CURRENTS are available on the firm’s website.
Articles from Law CURRENTS may be available for reprint. Please see individual articles for license information.

 

R. A. Klass
Your Court Street Lawyer

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