Opinion
CV106015366S
01-14-2016
Surekha Patel v. Haresh Patel
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Salvatore C. Agati, J.
The plaintiff, Surekha Patel and the defendant, Haresh Patel, are sister and brother. By warranty deed dated March 6, 1998, the plaintiff and her father, Amritbhai Patel, purchased as joint tenants property known as 2680 Dixwell Avenue, Hamden, Connecticut. The property is a 50' x 150' commercial lot on Dixwell Avenue, Hamden, Connecticut. (See Plaintiff Exhibit 1.)
The plaintiff testified that she bought the lot as an investment for herself and her children. At the time the lot was purchased she was married but she testified her husband was " irresponsible" and they subsequently divorced.
She testified that when the lot was purchased she had her father's name added as a purchaser to assure that the property would be available for the plaintiff and her children should the plaintiff and her husband have a breakdown in their relationship in the future. Plaintiff's Exhibit 2 provides proof that the plaintiff paid $25,907.29 in total with expenses for the purchase of the lot.
The plaintiff paid the first two real estate tax bills owed on the lot totaling $1,092.42.
The plaintiff testified that the defendant then paid the tax bills for subsequent years beginning with the Grand List of 1999 through the 2008 Grand List. (See Defendant Exhibits E-J.) The plaintiff testified that the defendant paid the taxes as a rental payment in return for the defendant's use of the lot to work on and sell automobiles. The defendant denied any such agreement and further testified that he is not a mechanic and does not sell automobiles.
The court finds no credible evidence of an agreement written and/or orally proven to substantiate a rental agreement between the plaintiff and defendant.
By quitclaim deed dated July 28, 2010, the father, Amritbhai B. Patel, conveyed all his right, title and interest to the lot to the defendant without consideration.
The defendant continued to pay the real estate taxes due on the lot for the Grand List years 2009-2014 (See Defendant Exhibits K-P) but for the first installment of the 2009 Grand List which was paid by the plaintiff in the amount of $898.66. (See Plaintiff Exhibit 5.)
The defendant testified that he paid the plaintiff $19,000 in cash for reimbursement to her for the purchase of the lot through October 12, 2001. The plaintiff testified that she did not receive any cash payments from the defendant during that time period. There was no credible evidence provided of payment or receipt of payment; i.e. no evidence of payment or acknowledged in writing.
The defendant testified that the final payment of $6,000.00 was made by check. (See Defendant Exhibit A.) The note on the check indicates " Land Payment Paid Fully." However, the plaintiff testified she did not receive this check and had never negotiated the check. On examination of Exhibit A it is noted that it lacks endorsement; lending credibility to plaintiff's testimony.
The court noted upon the parties resting presentation of evidence, that it was problematic that neither party called the father Amritbhai, as a witness to verify their respective claims against each other.
The plaintiff brought this action for partition pursuant to General Statutes § 52-495 and seeks a sale pursuant to General Statutes sec. 52-500.
In Fernandes v. Rodriguez, 255 Conn. 47, 761 A.2d 1283 (2000); the Supreme Court reviewed and elaborated upon the basis for a partition action and the remedies available thereunder.
The right to partition is well settled and its history has been documented thoroughly. Our most recent discussion can be found in Geib v. McKinney, 224 Conn. 219, 224, 617 A.2d 1377 (1992), wherein we reiterated: " The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy. No person can be compelled to remain the owner with another of real estate, not even if he become[s] such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it may be exercised. Therefore the law afford[s] to every owner with another relief by way of partition . . .Id., 55.
The Fernandez court then continued to discuss what are the remedies available if the court finds that a partition of the property is appropriate:
On the basis of the history of the right to partition, and in light of the legislative treatment of that right, we have held repeatedly that in resolving partition actions, the only two modes of relief within the power of the court are partition by division of real estate and partition by sale. " [A] court is limited to rendering a judgment of either partition in kind or by sale of the real property; thus terminating the ownership relationship between the parties." (Citations omitted.)Id., 57.
The defendant claimed by way of special defenses and counterclaim that the plaintiff is holding an undivided one-half interest in the property by constructive trust having paid her $26,000 for her interest in the property. The defendant further claims the plaintiff holds the defendant's undivided one-half interest under a promise, express or implied, for his benefit.
The court finds that based on the testimony and evidence presented that the plaintiff has proven her claim for partition of the real estate, that being 2680 Dixwell Avenue, Hamden, Connecticut.
The court further finds that the defendant failed to provide credible evidence to prove either a constructive trust or a promise, express or implied, for his benefit as to the plaintiff.
The court further finds that a partition in kind of the real estate is not physically practicable. The lot's dimensions are 50' x 150'. A further division of the lot would make it nonconforming and unmarketable. Therefore, the court orders a partition by sale.
Prior to ordering the sale to take place, the court appoints Casper Amodio of 12 Broadway, North Haven, Connecticut as appraiser of the property. Mr. Amodio is to provide the court with an appraisal of the property within forty-five (45) days of this order. After the appraisal is submitted either side would have the right, but not the obligation, to buy out the other side and close within sixty (60) days of the acceptance of the appraisal by the court.
The distribution of proceeds as determined by the court are as follows:
The plaintiff is to receive reimbursement for the purchase of the property, $25,907.29 and payment of real estate taxes for the 1998 Grand List, $1,092.42; totaling $26,999.71. The defendant is to receive credit for one-half (1/2) of the real estate taxes paid from the 1999-2008 Grand Lists. His payments benefitted the plaintiff for her one-half interest in the property. The total paid by the defendant was $12,975.23; one-half owed in reimbursement is $6,487.62. The 2009 Grand List tax bill was paid equally by the parties. The 2010-2014 Grand List tax bills (no evidence of the 2011 Grand List was provided), totaled $10,568.13 that was paid by the defendant. He is to be reimbursed for one-half of the payment; $5,284.07. The total reimbursement due to the defendant is $11,771.69.
If there is any equity remaining above the total of the two reimbursement amounts ($38,771.40), then the parties are to divide that remainder equally.
Should the parties fail to buy one another out, they are ordered to notify the court. The court will then appoint a committee and order a public sale of the property. The parties are equally responsible for any and all costs incurred by the court in this matter.