Partition Tenants in Common Appraisal Fees Attorney Fees
Gruca v. Sharek, PICS Case No. 17-1035 (C.P. Lawrence Jun. 22, 2017) Cox, J. (8 pages).
In this partition action, the plaintiff was required to contribute toward survey and appraisal costs, but defendants were not entitled to reimbursement of taxes, insurance or attorney fees.
The parties held real property as tenants in common. Plaintiff filed this action for partition. Plaintiff owned a one-half interest in the land and a one-third interest in the mineral rights. Each of the two defendants owned a one-fourth interest in the land and a one-third interest in the mineral rights. In their answer to plaintiff's complaint, defendants consented to the request for partition, but they did not assert any counterclaims or requests for reimbursement of any payments made in connection with the property.
The court issued an order directing the parties to appraise the property to be partitioned. Following a hearing, the complaint in partition was granted. Plaintiff was awarded 33.19 acres and defendants were each awarded 16.6 acres. Subsequently, defendants filed a motion for hearing in which they sought reimbursement for expenses made during the partition process, including taxes, insurance, appraisal costs, surveying expenses, and attorney fees.
The court held defendants were not entitled to reimbursement for taxes and insurance relating to the subject property, because case law indicated that recovery was waived if not requested in the pleadings. Aside from the waiver issue, the court held that any payments for taxes and insurance by defendants were voluntary, and no reimbursement was required for voluntary payments.
Defendants argued Pa.R.C.P. No. 1574 entitled them to a recovery of their attorney fees. The court noted that this rule allowed attorney fees to be awarded within the court's discretion, but where a partition action was contested and the services performed by counsel were adverse to other parties, attorney fees were not recoverable. In this case, the actions of defendant's counsel were adversarial in nature. In seeking reimbursement for various expenses, counsel for defendants was not acting for the common benefit of all the parties, but rather, only for the benefit of defendants. Accordingly, the court denied the request for attorney fees.
The expenses relating to the partition itself were recoverable, within the court's discretion. The survey arranged by defendants assisted the court in its determination, but it also significantly benefitted defendants by awarding them the frontage of the property. The court required plaintiff to pay one-third of the survey expenses and one-half of the appraisal costs.