New York Probate and Estate Administration Lawyer Blog
In Graffeo v. Paciello, the Appellate Division, Second Department, reviewed whether a brother could force the sale of a Brooklyn property held with his sister as tenants in common. The case involved a long-standing dispute over ownership, control, and whether restrictions in a recorded deed could block a partition action.
Background Facts
In 1976, the siblings’ maternal grandmother transferred full ownership of a three-family dwelling in Brooklyn to her granddaughter, Debra Carol Paciello. Two years later, in 1978, Debra transferred the property to herself and her brother, Louis Anthony Graffeo, as tenants in common. The deed included a restriction that the property could not be sold or transferred during their mother’s lifetime unless she consented. After their mother passed away, both siblings had to agree to any sale or transfer, unless she had removed the restriction before her death.
The deed was signed by both siblings and notarized by the drafting attorney. It was recorded in Kings County on August 4, 1978.
Years later, Debra claimed that her signature on the 1978 deed had been forged. She filed a lawsuit in 2000 against her mother, her brother, and the attorney. That action went through multiple appeals. Ultimately, the court dismissed her claim after finding that she failed to present enough evidence to overcome the presumption of due execution. As a result, the 1978 deed naming both siblings as co-owners remained valid.
After their mother died, Louis filed an action in 2003 to partition the property. He asked the court to order the sale of the property at public auction and divide the proceeds, arguing that it could not be physically divided in equal parts. He moved for summary judgment. The trial court denied the motion. Louis appealed.
Question Before the Court
The main question before the appellate court was whether the brother had the legal right to force a sale of the property by partition under Real Property Actions and Proceedings Law (RPAPL) § 901. The court also had to determine whether the language in the 1978 deed prevented him from filing the action without his sister’s consent.
Court’s Decision
The Appellate Division reversed the trial court’s decision and granted summary judgment in favor of Louis. The court held that he had the right to seek a partition and sale of the property under RPAPL § 901.
The court found that Louis proved his legal ownership interest in the property and his right to possession. He also showed that dividing the property physically was not practical and would result in harm to the co-owners. This made the property eligible for partition by sale rather than physical division.
The court rejected Debra’s argument that the restrictions in the 1978 deed blocked the partition action. It found that her argument was not timely raised and that the language in the deed did not prevent the court from ordering a partition if the co-owners could not agree or if one party unreasonably withheld consent.
Discussion
Under RPAPL § 901, a person holding property as a tenant in common may bring a partition action. If the property cannot be divided without harm to the owners, the court may order the property sold and the proceeds divided.
In this case, the court found that Louis met all legal requirements. He showed that the property could not be fairly divided. The record showed that it was a three-family building, making physical division difficult. Courts have consistently held that in such situations, selling the property and dividing the proceeds is proper.
The court also reviewed the restrictive language in the 1978 deed. While the deed required consent to sell the property, the court found that the restriction did not apply to partition actions. The court noted that the restriction did not say that a partition action could not be brought. Even if it had, a clause preventing partition would likely not be enforceable if one co-owner refused to consent without a valid reason.
The court further noted that Debra’s claim about the restriction was raised too late. She presented it in a supplemental affidavit, which was effectively an improper surreply and not allowed under court rules.
The court also looked at the history of the parties’ dispute. Debra had previously tried to invalidate the deed and failed. That decision confirmed that both siblings owned the property. Since the mother had passed away, the condition that had restricted sale during her lifetime was no longer in effect. The restriction requiring mutual consent after her death could not block a partition action under RPAPL § 901.
Conclusion
The appellate court ruled that Louis had the legal right to seek partition and sale of the Brooklyn property. The property could not be physically divided without loss to the owners, and the restriction in the 1978 deed did not stop the court from ordering a sale.
This case shows that courts will enforce the rights of tenants in common to bring partition actions when property cannot be divided fairly. Even if there are deed restrictions requiring consent to sell, courts may still order a sale if co-owners cannot agree or if one party acts unreasonably.