[WSBARP] Partition action

Tue Feb 7 13:14:10 PST 2023

There is also caselaw to the effect that if a party makes improvements or repairs to the property, they only get reimbursed to the extent that the improvements added value to the property so just repairs would not require a reimbursement in any final accounting

Bryce H. Dille
Dille Law, PLLC
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Cell: 253-579-5561

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On Feb 7, 2023, at 1:01 PM, Eric Nelsen <eric at sayrelawoffices.com> wrote:

I think Cummings v. Anderson is still the most-often cited case, even though it’s 40 years old and involves a meretricious relationship. In general, the notion of percentage ownership, which is theoretically established at time of purchase, gets muddled by post-purchase contributions of unequal amount by the co-owners. That needs to all get reconciled in an accounting in the partition, with the result that the net proceeds from sale usually get divided at percentages that differ from the initial purchase. To get super-technical about it, a court could hold that the initial percentages do not change, and make a specific division of net proceeds based on that initial percentage, and then as a second step add and deduct from each side for proportional post-purchase expenses...but I think it all comes about basically the same anyway.

WSBA Real Property Deskbook (4th ed. 2014), Vols. 1&2, Ch. 3, is a great resource. From Ch. 3.2(3):
The tenant in common who is obligated to share rights in cases like those just mentioned is a quasi fiduciary who acquires the right for the benefit of all of the tenants in common. But the tenants for whose benefit he or she acts do not get a "free ride"; they must contribute their proportional share to the cost of the encumbrance or right acquired or the mortgage or price paid. The paying tenant may have an action for contribution. Walters v. Walters, 1 Wn.App. 849<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=1+Wn.App.+849&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 466 P.2d 174<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=466+P.2d+174&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (1970). The paying tenant in common may be protected by being given a lien against the other's interest for the amount that is due. Woodard v. Carpenter, 31 Wn.2d 271<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=31+Wn.2d+271&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 195 P.2d 983<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=195+P.2d+983&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (1948). Alternatively, the other tenant may be put to an election either to pay or to allow the payor to assert the right acquired (failure to pay being deemed an election to allow the payor the sole claim). Buchanan v. First Nat'l Bank, 184 Wash. 185<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=184+Wash.+185&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 50 P.2d 520<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=50+P.2d+520&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (1935).
Although a tenant in common who makes payments that preserve or protect the property held in common is entitled to contribution from those who have benefited, the tenant who makes improvements may find that the payments will not be repaid. In re Foster's Estate, 139 Wash. 224<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=139+Wash.+224&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 246 P. 290<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=246+P.+290&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (1926). However, improvements may be considered in the process of partition. Cummings v. Anderson, 94 Wn.2d 135<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=94+Wn.2d+135&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 614 P.2d 1283<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=614+P.2d+1283&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (1980). Personal services in caring for and managing the property will not, however, entitle the person acting to any payment unless there is an agreement. Von Herberg v. Von Herberg, 6 Wn.2d 100<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=6+Wn.2d+100&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202>, 106 P.2d 737<http://links.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=106+P.2d+737&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%201%20&%202> (1940).
Also, for what it’s worth, here’s some undigested chunks of a recent trial brief by our firm on a partition action:

A partition action is an action in equity.  Cummings v. Anderson, 94 Wn.2d 135, 143, 614 P.2d 1283 (1980).  RCW 7.52 et seq. governs a partition between tenants-in-common.  The Court is to determine “the respective rights of the parties” and it may require that one party compensate the other if the partition “cannot be made equal between the parties according to their respective rights, without prejudice to the rights and interests of some of them . . . .”  RCW 7.52.090, RCW 7.52.440.
            Ch. 7.52 RCW does not provide rules for valuing a party’s interest.  “The trial court has ‘great flexibility’ in fashioning equitable relief for the parties.”  Kelsey v. Kelsey, 179 Wn. App. 360, 365, 317 P.3d 1096 (2014).  “[A] court in the exercise of its equitable powers may fashion remedies to address the particular facts of each case, even if the partition statute does not strictly provide for such a remedy.”  Id. at 369, 317 P.3d 1096.

When sitting in equity, the trial court may fashion broad remedies to do substantial justice to the parties and put an end to litigation.  Appellate courts have frequently deferred to the trial court’s judgment in tailoring a decree which balances both parties’ interests and reaches an equitable solution to the controversy . . . .

Eichorn v. Lunn, 63 Wn. App. 73, 80, 816 P.2d 1226 (1991) (internal citations omitted).

In a case between co-tenants, if a deed does not designate the interest of the co-tenants, then there is a rebuttable presumption that the co-tenants have equal interests.  See Cummings v. Anderson, 94 Wn.2d 135, 614 P.2d 1283 (1980);  Iredell v. Iredell, 49 Wn.2d 627, 631 305 P.2d 805 (1957).  However, when the initial presumption is rebutted by evidence of unequal contributions, a presumption arises that ownership is held in proportion to contributions made by the parties: “Property acquired with contributions from both parties is held as tenants in common, and courts will presume they intended to share the property, in proportion to the amount contributed, where it can be traced, otherwise they share it equally.”  West v. Knowles, 50 Wn.2d 311, 313, 311 P.2d 689 (1957).

See also Stotzky v. Riggers, No. 77980-0-I, (Wash. Ct. App. Sept. 23, 2019) for a recent unpublished case that digs into the equitable considerations when determining what post-purchase expenses should count in a partition action.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Jonathan Smith
Sent: Tuesday, February 7, 2023 12:21 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] FW: Partition action

I sent this out yesterday, but did not receive any responses. Not sure if it went out or not? Can someone confirm that it went to the listserv?  Thanks.

Jonathan Smith
Attorney at Law
(425)452-9797 Tel
(425)440-7681 Fax

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From: Jonathan Smith
Sent: Monday, February 6, 2023 3:45 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: Partition action

Greetings,

Some 20 years ago, I did my only other partition action. The files are gone. If I recall correctly, there was case law which guided distribution as between two tenant in common. If I recall, if one party was claiming proceeds from the sale were not to be divided 50/50, then the moving party could show that the division should be based upon their respective contributions.  So we added the earnest money to person who tendered that, then allocated mortgage payments (both parties occupied the residence so ouster was not an issue.) as well as money spent to improve the property. At any rate, based upon that method, one parties was deemed to own 65% and the other 35% (if I remember correctly.), but the important issue being how to determine percentage rights to the proceeds from he sale?

Can anyone provide some guidance and updated case history on diving up sales proceeds?  Thank you.

Jonathan Smith
Attorney at Law
(425)452-9797 Tel
(425)440-7681 Fax

<http://advantagelegalgroup.com/>
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12207 NE  8th Street
Bellevue, WA 98005

This E-mail is covered by the Electronic Communications Privacy Act, 18 USC Sections 2510-2521 and is legally privileged.  This information is confidential and is intended only for the use of the individual or entity named above.  If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited.
Legal Advice Disclaimer: You should recognize that responses provided by this email means are akin to ordinary telephone or face-to-face conversations and do not reflect the level of factual or legal inquiry or analysis which would be applied in the case of a formal legal opinion.  A formal opinion could reach a different result. This communication does not create an attorney-client relationship.
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