By agreement, circumstance or inheritance, residential cooperative or condominium units often end up being owned by several family owners. A “happy family” can only be found on the menu of a Chinese restaurant. So, as two recent cases demonstrate, the family members sometimes end up in a so-called “partition” proceeding in which the Court must decide if the unit should be sold and the parties account for their claims to the proceeds of the sale.

Vernon A. Anthony and his brother, Robert S. Anthony, own condominium Unit 1 at 46 President Street in Brooklyn, as tenants in common. Needless to say, litigation ensued.

Vernon asked the Court for an order stopping Robert from transferring or mortgaging the unit; compelling Robert to pay the real estate taxes, common charges, repair and maintenance costs due under a stipulation of settlement plus $3,000 use and occupancy for the exclusive possession of the unit; and for a judgment against Robert on his claim for partition and sale of the unit.

The unit was originally owned by Vernon and his father Alfred Anthony by deed dated July 11, 1986. Upon the death of Alfred, the parties’ mother, Helen Anthony inherited her husband Alfred’s 50% interest in the property by operation of law. After Helen’s death on August 23, 1990, Vernon, Robert and their non-party brother Arthur J. Anthony, inherited their mother Helen’s 50% interest in the property as her heirs at law. On or about May 17, 1999, Vernon, Robert, and Arthur conveyed their interest in the property to Vernon and Robert as tenants in common.

According to Vernon: he never lived in the unit but made most of the mortgage payments.; Robert has had exclusive use and occupancy of the unit since 1991, and it was agreed that Robert would pay all of the carrying charges, including the common charges, real estate taxes, maintenance and repairs for the unit; on or about January 2012, Robert stopped making any contributions or payments for the unit; and in 2015, the Board of Managers of the condominium commenced a foreclosure action for the outstanding common charges.

Vernon and Robert entered into a stipulation with the condominium settling the matter for $38,000, which Vernon ultimately paid in full. And Vernon continued to pay the common charges for the unit with no contribution from Robert. As of March 18, 2020 Vernon had expended a total of $86,405, including $3,500 to settle a property damage claim involving a neighbor. And there were unpaid real estate taxes due, totaling $11,822.05.

According to Robert: he repeatedly offered to resume paying the common charges, all other related expenses, as well as to compensate Robert for his recent expenses. Robert moved into the unit to take care of the parties’ younger brother, who suffers from cerebral palsy and is partially paralyzed, after the deaths of their parents in 1990. Robert has lived with his younger brother for 29 years and for most of those years covered all the condominium expenses with no financial contribution from Vernon.

Robert contended that he was the victim of racial harassment by his neighbors which caused him difficulty in making an income. His financial condition vastly improved and he now has regular income, collecting social security payments as well as monies from freelance work, which is enough to cover the carrying charges each month. Robert claimed that he had the ability to maintain the unit, compensate Vernon for his expenses, and cause him no future expenses. Robert sought a payment plan to resolve the matter and asserted that a sale would cause him to be homeless.

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. Here, Vernon established his prima facie entitlement to judgment as a matter of law on his cause of action for partition of the unit by submitting a copy of the deed to the property indicting that he is a tenant in common with Robert; he owns a 50% interest in the unit; and that a physical partition of the unit could not be made without great prejudice to the owners.

In opposition, Robert failed to establish that the equities favor dismissal of the action. Although the court was sympathetic to Robert’s circumstances, and would have preferred to see the parties negotiate a settlement, equity did not warrant denial when the defense amounted to nothing more than the adverse consequences which would befall him if partition was ordered.

In light of the disagreement as to the expenses paid by each of the parties, prior to the entry of an interlocutory judgment directing the sale of the unit, an accounting was necessary to determine the respective interests of Vernon and Robert in the unit.

Vernon did not have a claim for use and occupancy of the unit by Robert. A tenant in common is generally not liable to another for use and occupancy in the absence of an agreement or ouster. Here, Vernon did not demonstrate an ouster and did does not sufficiently demonstrate the existence of an agreement between the parties that required Robert to pay use and occupancy for the unit.

The Court found that, in order to maintain the status quo while the action was pending, a preliminary injunction was warranted enjoining both Vernon and Robert from pledging, encumbering, dissipating, transferring or in any way clouding the title to the unit.

*********

Gertrude Kosovsky, the 96 year old mother of Karen Kosovsky, sued for the partition and sale of a cooperative apartment. Supreme Court denied her motion for summary judgment. Gertrude appealed.

Gertrude and her husband (Karen’s father), purchased the apartment together with Karen in 2001. Upon husband’s death in January 2015, Gertrude became the owner of a 50% interest in the apartment, as tenant in common with Karen, who held the other 50% interest. Gertrude alleged that Karen, who resides there with her daughter, forcibly excluded her from the apartment.

Karen alleged that prior to the 2001 purchase, she and her parents orally agreed that Karen would have exclusive possession of the apartment; her parents’ interest in the apartment was in name only; she and her parents would split the apartment’s carrying costs; and that they would not sell or partition the apartment without Karen’s approval.

By demonstrating her ownership, her right to possession of the apartment, and that partition could be made without great prejudice, Gertrude established her prima facie entitlement to summary judgment on her claim for partition and sale of the apartment. Karen failed to controvert Gertrude’s ownership interest in the apartment. Karen’s contention that the apartment was her current residence did not constitute prejudice. Supreme Court found, and the appeals court agreed, that other than her affidavit, Karen had not submitted any evidence of an oral agreement to waive partition.

On this record, the appeals court found that the equities dictated that an accounting should be held after the partition and sale of the apartment. To the extent that both Gertrude and Karen asserted claims for an accounting, the parties’ equitable share of the net proceeds should be resolved at a hearing before the trial court, where upon the evidence, the trial court can adjust the equities and distribute the proceeds accordingly.