Monday, January 7, 2008

New Court of Appeals case on Partitioning Real Estate

Thomas Keller and Shirley Rohrs v. Daniel Keller - (PDF format)

"Defendants-Appellants Thomas Keller (“Tom”) and Shirley Rohrs (“Shirley”) appeal the trial court’s order finding that the family farm (“the Farm”) could not be partitioned and should be sold at a public auction. We affirm."
This paragraph sets out the problem in a nutshell:
Tom, Shirley, and Daniel Keller (“Dan”) are siblings. Each owns an undivided one-third interest in the Farm as tenants in common. The Farm consists of approximately one hundred and sixty acres of land located in DeKalb County, Indiana. It is zoned CI-1 Open Industrial. Single-family residences are not permitted in this type of zoning district in DeKalb County.

It is also significant to note that in its order, the trial court provided that Tom and Shirley could bid on the Farm at the public auction. This gave Tom and Shirley a reasonable opportunity to keep the Farm within the Keller family. Given the discretion the trial court is afforded under Indiana Code § 32-17-4-12(a) to determine whether property should be sold through a public or private sale and based on the evidence presented at trial, we cannot say that the trial court’s judgment was clearly erroneous or an abuse of discretion.

IC 32-17-4-12(a) says:
If the commissioners report to the court that the whole or part of the land of which partition is demanded can not be divided without damage to the owners, the court may order the whole or any part of the land to be sold at public or private sale on terms and conditions prescribed by the court.