Husband and wife hold ranch property as “tenants in common.” 1/3 of their land is generally leased. When the couple divorced, the wife lived in the home. The husband built a smaller home a short distance away. The third home on the property is for a worker. At trial the husband sought for and was granted an order that the land be sold rather than partitioned. At trial, the court found that the value of the land would be maximized by sale rather than partitioning. The court held that the land should be sold and divided equally between husband and wife.
The test for whether property should be sold or partitioned is statutory: “… if the property is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof.” Otherwise, once the petitioner meets the standard of proof, an order of partition is required. “A great prejudice exists when the value of the share of each in case of a partition would be materially less than his share of the money equivalent that could probably be obtained from the whole.”
Whether, given the stated facts, the land should be sold rather than partitioned.
No, the land shall be partitioned in kind. “The law favors partition in kind where it can be made without great prejudice to the parties.” The burden of proving that partition is not burdensome is on the demanding party (the wife). The trial court held that partitioning the estate would substantially reduce the economic utility in the entire land. The court writes that while this is one consideration, there are many others to be had. The court wrote “emphasis must also be placed upon the situation of the parties and their respective financial abilities, including the financial ability of one of the parties to purchase the property, the location and character of the property and the size and utility of the respective shares. Sentimental reasons… may also be considered… but are subordinate.”
The financial abilities between husband and wife are great – with the husband being the more able party. The wife’s worth is almost entirely based on her share of the land. There is also a 78K lien on the land in favor of husband, against the wife – which would enable husband to purchase the entire ranch. The proposed partition would not hurt the husband as much a proposed sale would hurt the wife. The wife labored the land and has “… the right to preserve the heritage of her albors, and the right to pass the property to her heirs.” Partition preserves the right to pass land to one’s heirs.