Green v. Green
| Decision Date | 23 November 2022 |
| Docket Number | C. A. 2019-0787-PWG |
| Parties | Jay Kevin Green and Rene G. Johnson v. Lewis Curt Green, Sr., and Lawrence Lee Green |
| Court | Court of Chancery of Delaware |
Dear Counsel:
Pending before me is a dispute involving the partition in kind of approximately 86.4 acres of property in rural Sussex County co-owned by four siblings. The return of the court-appointed commissioners subdivided the property into four parcels of equal size. Two siblings filed objections to the commissioners' return, with the qualification that their objections would be cured depending upon the assignment of the parcels. Applying equitable principles, I assign the parcels in a manner that cures the other objections. I recommend that the Court approve the commissioners' return, and direct that subdivision, demolition and other specified costs associated with the partition be shared equally among the siblings. This is a final report.
Petitioners Jay Kevin Green ("Jay") and Rene G. Johnson ("Rene," together with Jay, "Petitioners") with their siblings Lewis Curt Green, Sr. ("Lewis") and Lawrence Lee Green ("Lawrence," together with Lewis, "Respondents"), own an approximate 86.4 acre parcel of land located east of Greenwood, Delaware ("Property"), as tenants in common, holding a 25% interest each.[2] The Property has been in their family since about 1980,[3] and has improvements, including an older farmhouse, in which Lawrence's daughter currently resides,[4] a non-operating poultry house,[5] a manure shed, and other storage and equipment sheds.[6] The entire Property is farmed under a lease arrangement.[7] Petitioners filed a petition seeking partition by sale of the Property on October 1, 2019.[8] On November 7, 2019, Respondents filed an answer and counterpetition for partition in kind.[9] On July 9, 2021, the parties agreed to proceed with a partition in kind.[10] On December 10, 2021, Respondents identified three commissioners to be appointed under 25 Del. C. §724.[11] On January 7, 2022, the Court appointed Lawrence P. Moynihan, Mike Cotten and Richard L. Bryan ("Commissioners") as commissioners pursuant to 25 Del. C. §724, and directed them to "make a just and fair partition [of the Property] amongst the parties in the proportions set out [in the Order (each sibling held a 25% interest in the Property)]."[12]
In a letter dated March 9, 2022, the Commissioners filed their return ("Return") summarizing their opinion of a just and fair partition of the Property.[13]The Return noted that the Property is zoned AR-1, Agricultural Residential, under the zoning authority of Sussex County, and there is no public water or sewer service to the Property.[14] The Return determined that the highest and best use of the Property would be to subdivide it into four lots for residential development.[15]Attached to the Return was a survey dividing the Property into four lots of equal size, Lots 1 through 4, of approximately 21.595 acres each, and close to equal road frontage, as reflected below.
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The Return stated that the structures on the Property (except for the manure shed) do not contribute any value and should be demolished.[16] In addition, the Return noted that the northernmost lot (Lot 4) fronts the headwaters of the Nanticoke River and is partly in a flood zone, but concluded that any limitation caused by the flood zone area is offset by the "more desirable development potential of the remaining uplands having attractive waterfront orientation."[17]
Finally, the Return suggested, as requested by Lawrence, that the most southerly lot (Lot 1) be assigned to Lewis, since he owns adjoining land, and that the adjacent lot (Lot 2) be assigned to Lawrence.[18] It noted, however, that the Commissioners did not consider ownership of the four parcels in making a just and fair partition and "[f]rom a valuation standpoint, any of the owners could take any of the parcels."[19] When the Commissioners visited the Property, they met with Lawrence.[20] They did not meet, or have any contact, with Petitioners prior to preparing the Return.[21]
Petitioners filed objections to the Return ("Objections") on April 19, 2022.[22]The Objections disputed the Commissioners' determinations that: (1) residential development was the highest and best use for the Property;[23] (2) the improvements, including the farmhouse, added no value and should be removed;[24]and (3) Lot 4 was equal in value to the other lots.[25] Petitioners' other concerns included the lots' differing demolition costs, and the Commissioners' contact with Respondents and not Petitioners.[26] They asked the Court to reject the Return and either appoint new commissioners under 25 Del. C. §725, or order partition by sale.[27] An evidentiary hearing on the Objections was held on October 19, 2022.[28]The Commissioners and all four siblings testified at the hearing.[29] Jay testified that he preferred Lot 2 because of the farmhouse and the buildings.[30] Rene testified that she preferred Lot 1 because it has easy road access, "[y]ou can build right away," and for personal reasons.[31] Rene and Jay expressed no interest in Lot 3 or Lot 4.[32] At the hearing, two of the Commissioners described Lot 4 as the best lot, the choice location.[33] Lawrence testified that Lot 4 was the "most desirable" lot, and both he and Lewis prefer having adjacent lots.[34] Lewis expressed an interest in Lot 1 because it adjoins his existing property, but described Lot 4 as "pretty choice," and said he would take Lot 3 or Lot 4 - that it didn't matter to him.[35]
The parties submitted written post-trial statements on November 4, 2022.[36]Petitioners ask the Court to assign the lots consistent with the parties' trial testimony (Lot 1 to Rene, Lot 2 to Jay, Lots 3 and 4 to Lawrence and Lewis), and indicated that such an assignment would cure their other objections, which they would withdraw.[37] They also indicate that they "would not oppose the imposition of reasonable conditions, such as a duty to cooperate to ensure access to each lot from the roadway or shared cost of removal of the existing poultry house."[38]Respondents support the Return, acknowledging Respondents' preference that Lewis get Lot 1 and Lawrence get Lot 2, as the Return suggested, but indicating that they would be "agreeable to the Court assigning the properties as it saw fit."[39] They also argue that the demolition costs necessary to achieve subdivision approval should either fall on the assignee of each lot or be allocated evenly among the parties.[40]
I consider whether the Return should be approved and how the lots, as partitioned, should be assigned to the co-owners. "The Delaware partition statute recognizes the common law equitable right to sever concurrent ownership interests in the same real property."[41] "Because of the unique nature and quality of land, the Delaware partition statute contemplates 'as the first and preferred option not the partition sale of land but partition in kind.'"[42] Under Delaware's partition scheme, this Court is afforded general equity powers and authority "to make any order or decree not inconsistent with the provisions of this chapter relating to causes in partition, or matters incidental or pertaining thereto, which the right or justice of the cause may demand."[43] In a partition in kind, co-owners "have no legal right to any particular part or parcel of the land they own as co-tenants."[44] This Court applies "equitable principles of fairness in approving an assignment of a particular parcel on in-kind partition of land."[45]
Petitioners state that their objections to the Return would be cured and withdrawn if Rene is assigned Lot 1 and Jay is assigned Lot 2.[46] Rene seeks Lot 1 so that she can build right away and for personal reasons,[47] and Jay seeks Lot 2 to use the farmhouse.[48] Respondents have not objected to the Return, and assert that it represents a just and fair partition.[49] Lewis has expressed an interest in Lot 1 because it adjoins his existing property,[50] and both Lewis and Lawrence expressed the desire to have adjoining lots.[51] I do not rely on the Returns' suggested lot assignments, considering that the Commissioners spoke only with Respondents (not Petitioners) prior to making their suggestions,[52] and the Return stated the suggestions were being provided "as a convenience to the court" and that "any of the owners could take any of the parcels."[53]
Further, Lawrence described Lot 4 as the most desirable lot and Lewis called it "pretty choice" because of its view, location, and the ability to hunt and fish.[54]Lawrence and Lewis discussed farming their lands together and all of the Property, including Lots 3 and 4, can be farmed.[55] And, unlike Petitioners, Respondents did not reject the possibility of being assigned Lots 3 or 4, and agreed to the Court assigning the properties "as it saw fit."[56] Therefore, I find it is equitable and fair to assign the lots described in the Return as follows:
With those assignments, there are no remaining objections to the Return. The parties shall work together to subdivide the Property into the four lots as described in the Return.
Each co-owner shall share equally in the costs of demolishing the poultry house on the Property, and any other structure on the lots that the...
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