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(b) Why somebody initially I don’t want to sell? (i)Not like what they’re doing with the property; continue to bargain(c)Issue of sales of land: court will value land by highest and best use. Motivation behind reluctance but in this case, sentimental attachment that does not justify the split. (i)Evidence shows minority family members only use the property for weekend retreats. (ii) If use of property was different, then economic activity takes precedence over any long-term use or sentimental attachment to property on part of appellants. (d) How do you fairly break apart land if no agreement (e)Why did ark want partition the land by sale? They wanted to sell the property and then, they buy it after the auction. (f)Ark’s main argument- wants to conduct its business but if partition in kind then costs more money(g) Court has to be aware of the behind the scenes. (h) One of the considerations is prejudice to one of the parties (i)Problem: how do you decide to partition(i)Partition in kind- basically split the land but problem over a specific item(j)Partition by sale- land sold but proceeds divided amongst fractional interest(k) Issue of highest and best used; more economical from Ark’s standpoint and (l)If economics dictate decision, companies come in and take over land.(i)Want to use the land for highest and best use (m)If too much emphasis on emotional attachment, then harm to larger community by rejecting proposed use (n) Using the balance test- 3 requirements(i)If break apart, going to have an impact(ii) Value- arks interest promoted(iii)Family does not want to sell (2) Balance test- to overcome presumption in kind24
Property I Law- Merged Outline(a)Land cannot be conveniently partitioned in kind (if not, weighs in favorably partition by sale) (b) Interests of one or more parties promoted by the sale(c)Interests of other parties prejudiced by the sale(3) Who may partition(a)A tenant in common or a joint tenant generally has the right to unilaterally partition the property but not a tenant by entirety. (b) Property partitioned either voluntarily by agreement or involuntary by court action.(4) Effect of partition(a)Partition in kind- court physically separates the land into distinct portions (common law / favored by courts)(i)Fair division of land(ii) Majority- break parcel apart; land unique(iii)Preferred unless doing so will result in great prejudice to one of theowners(b) Partition by sale- forced sale of property with division of proceeds split amongowners(i)More commonly used but can lead to too many people owning little piecesof property and underutilizing land(5) Restriction on partition(a)Traditional- an agreement not to seek partition is unenforceable because viewed as an invalid restraint on alienation. (b) Modern- an agreement against partition is enforceable so long as it is reasonable in duration and with a clear purpose.