Legal Question in Real Estate Law in New York
tenants in common
I petitioned for partition of a property held as tenants in common with my ex husband. The judge granted me a summary judgment and dismissed my ex husbands's counterclaim with prejudice. The matter is now referred to a referee for partition.
While waiting for the actual partition, I have several questions.
This property was acquired during our marriage. I paid the
downpayment with monies earned when I was single and subsequently paid the mortgage,insurance, taxes with my income, with minimal contribution for the maintenance from my ex husband. After he abandoned on 1990, I continued to pay all of the above to preserve my lifetime investment.
Will I also be credited for the payments I made towards the acquisition and maintenance of the property during the course of our marriage?
If it has to be equitably devided, will the value of the property be at the time of the judgment or when the property was abandoned? With the highly inflated market value of real property, if the property is valued now, my ex husband will be unfairly profiting for abandoning the property and from the hardship I went through in preserving the property since 1990. Should this be considered by the referee in the partition?
2 Answers from Attorneys
Partition is done at present value.
However if you had reserved equitable distribution in your divorce and brought the partition under equitable distribution you might have be able to have the valuation done as of the date of your divorce.
Good News. Everything you spent will be credited to you and you can argue that your percentage ownership should be greater as you were the main contributor to the property. Assuming this is your main asset in life you need a good lawyer to push your position. The lawyer should be worth the expense because of the increased recovery you could obtain.
Re: tenants in common
Usually, when a Partition action is sent to a Referee, the parties must each present proof to the Referee, of their respective interest, share and entitlement to the property. They must also present to the Referee, their respective proposals for dispostion of the property.
The Referee may require both oral and written claim presentation, to arrive at a proposed resolution. Then, the Referee prepares a "Referee's Partition Report" for the Judge, sometimes including a "Proposed" Partition Judgment, for Entry. Since, the "standard of review" in Partition actions is "law & equity." Which means you should be able to recover all of your PROVEN costs, disbursements, expenditures and contributions actually made for the acquisition and maintenance of the property, prior to, during and subsequent to your marriage, before allocation and distribution of the "net" proceeds, upon sale of the property.
However, you should retain an attorney,ASAP, if you currently do not have one. You will need one to effectively marshal your evidence and negotiate resolution of your Partition action.
Good luck,
Phroska L. McAlister,ESQ
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