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Donnelly v. Capodici

New Jersey Superior Court, Chancery Division

Decided: December 24, 1987.


Humphreys, A.j.s.c.


[227 NJSuper Page 311]


This is a partition action.*fn1 Defendants have agreed to buy plaintiffs' interest. Plaintiffs have improved the real property, and the improvement has enhanced the value of the property. The issue, novel in New Jersey, is whether the seller is entitled to a credit for that enhanced value. The court finds that a credit should be allowed; otherwise, the buyer would be unjustly enriched.


In an earlier decision in this action the court fixed the value of the property and referred certain issues to a Master. Hearings were conducted by the Master. Thereafter he found that both the plaintiffs and defendants had improved the real property; but that the plaintiffs' improvements had increased the value of the real property by $7,500 more than the defendants' improvements.

Defendants do not object to the factual findings of the Master. However, defendants contend that when both parties in a partition action occupy the premises, any increases in overall value resulting from improvements by those parties

[227 NJSuper Page 312]

should not be considered. Plaintiffs do not object to the Master's findings.

Defendants argue that "the effect of the decision of the standing master was to have the defendants pay for the improvements made over 20 years ago to plaintiffs' apartment, which improvements were solely used and enjoyed by plaintiffs."

Defendants' reasoning is erroneous. The Master did not allow a credit for the cost or value of the improvements the parties had made to their apartments. Rather, the Master calculated the overall increase in the value of the real property resulting from those improvements and credited the parties accordingly. That overall increase inures to the benefit of the defendants, since they are purchasing the property. If no credit were allowed, the defendants would receive a windfall.

Defendants argue that New Jersey authority for permitting such a credit does not exist. However, decisions from other jurisdictions support the Master's conclusion. In Capogreco v. Capogreco, 61 Ill.App. 3d 512, 18 Ill.Dec. 815, 378 N.E. 2d 279 (Ill.App.Ct.1978), the court in a partition action stated:

See, to the same effect, Chance v. Kitchell, 99 N.M. 443, 659 P. 2d 895 (1983); Dodds v. Dodds, 246 Ark. 313, 438 S.W. 2d 54 (1969); 59A Am.Jur. 2d, Partition, ยง 244; Re Marriage of Berger, 140 Ariz. 156, 680 P. 2d 1217 (App.1983); Martinez v. Martinez, 638 P. 2d 834 (Colo.App.1981); see also Baird v. Moore, 50 N.J. Super. 156 (App.Div.1958); Lohmann v. Lohmann,

[227 NJSuper Page 313]

50 N.J. Super. 37 (App.Div.1958); Small v. Tucker, 61 N.J. Super. 553 (Ch.Div.1960); Ross v. Ross, 35 N.J. Super. 242 (App.Div.1955); Finley v. Keene, 136 N.J. Eq. 347 (Ch.1945); Mastbaum v. Mastbaum, 126 N.J. Eq. 366 (Ch.1939).

New Jersey courts have recognized that partition is an equitable action and should therefore be governed by equitable principles. Newman v. Chase, 70 N.J. 254 (1976). Equity should not permit unjust enrichment. An equitable lien will, therefore, be imposed in favor of the plaintiffs. Capogreco v. Capogreco, supra.

The Master's comprehensive and well written report is correct in all respects and is confirmed. His bill for services is approved. Counsel for plaintiffs will submit a form of final judgment.

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