Lawrence v. Harvey

Can a Co-Owner Force the Sale of a Montana Home? Lawrence v. Harvey, 186 Mont. 314 (1980)

Boland Aarab PLLP

Generally, yes. In Lawrence v. Harvey, 186 Mont. 314, 607 P.2d 551 (1980), the Montana Supreme Court held that a cotenant is entitled to partition “as a matter of right,” not as a matter of the court’s grace, unless partition would be against public policy or legal or equitable principles. The Court ordered a partition sale of a former family home. It agreed with Tom Boland‘s clients, five adult children who co-owned the home with their father, that his child-support payments did not earn him extra equity. It also held that the children must be credited for the mortgage, tax and insurance payments they and their mother made.

Key Takeaways

  • A Montana cotenant is entitled to partition as a matter of right, subject to limits of public policy, law and equity, and possible waiver by agreement (Lawrence, 186 Mont. at 321).
  • Court-ordered child support does not become a credit toward equity in the home unless the decree clearly says so (at 322–23).
  • A cotenant shares in the property’s appreciation in proportion to his interest (at 323).
  • In the final accounting, cotenants who paid more than their share of the mortgage, taxes and insurance are credited for it (at 324).

In this case sheet: At a glance · What the Court held · What Tom Boland argued · What changed · Laws · When it applies · How hard · Related law and later decisions · FAQ

The practice Tom Boland built is the practice that handles your case today. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

CitationLawrence v. Harvey, 186 Mont. 314, 607 P.2d 551 (1980)
CourtMontana Supreme Court (unanimous). Opinion by Justice Daly, joined by Chief Justice Haswell and Justices Harrison, Shea and Sheehy.
DecidedMarch 7, 1980 (submitted on briefs January 16, 1980; rehearing denied March 26, 1980)
DocketNo. 14879, on appeal from the Eighth Judicial District, Cascade County
ResultAffirmed in part and reversed in part; remanded for a partition sale and an adjustment of the parties’ equities
Counsel for the respondentsThomas E. Boland, Great Falls
Read the opinionOpinion (CourtListener, PDF)

Case documents

Read the full opinion (PDF) →

What did the Montana Supreme Court hold in Lawrence v. Harvey?

Background. The property was a Great Falls family home bought in 1958 by a husband and wife as joint tenants (186 Mont. at 316–17). The 1970 divorce decree set the home aside for the use of the mother and the minor children “until further order of the Court,” and it ordered the father to pay $225 a month in child support (at 316–17). The decree never made a final disposition of the home (at 318).

After the children were grown, the mother conveyed her interest to the five children by quitclaim deed; she later died (at 317). The father then sued for a partition sale. The district court denied a sale. It valued his interest at half the down payment plus half the equity built during the marriage, $3,879.15, and ordered him to quitclaim his interest to the children on payment of that sum (at 316–18).

The holding. The Supreme Court decided four issues:

  1. Partition sale (reversed). Under §§ 70-29-101 and 70-29-202, MCA, and following California’s construction of the statutes Montana borrowed, “a cotenant is entitled to partition as a matter of right” (at 319–21). Partition would have been improper while the home was set aside for the minor children. But the mother had died and the children were adults and now cotenants, so denying partition was an abuse of discretion (at 321–22).
  2. Child support as equity (affirmed). Support payments “were intended to provide for the common necessities of life.” A refund in the form of home equity “must appear in the judgment,” and it did not (at 322–23).
  3. Appreciation (reversed). As a continuing cotenant, the father was entitled to share in the property’s appreciation in proportion to his interest (at 323).
  4. Estoppel (reversed). The father was not estopped, and he “committed no ‘wrong’ by failing to make house payments after the divorce” (at 324–25).

On remand, the partition court was to adjust the equities (at 323–24):

  • The children must be credited with the principal, interest, insurance and taxes they and their mother paid beyond their share.
  • The father gets no offset for rental value before the suit.
  • The children must account for use and occupancy beyond their share after he demanded possession by filing suit.

What did Tom Boland’s clients argue, and how did the Court differ?

Our clients’ position. Tom Boland represented the five adult children, the defendants and respondents. They defended the district court’s judgment:

  • no partition sale;
  • a buyout at the father’s equity as of the divorce;
  • no credit for his post-divorce support payments;
  • estoppel against any larger claim (at 316–18, 324–25).

The opinion does not quote their briefs.

Where the Court agreed. The Court upheld the most contested accounting point for the children. The father’s child-support payments did not buy him added equity in the home (at 322–23). It also directed that the children receive credit for the carrying costs they had paid, and that they owe no rent for the years they lived there under the decree (at 324).

Where the Court differed. The Court held that the father, as a cotenant, was entitled to a partition sale and to a proportional share of appreciation, and it rejected the estoppel finding (at 321–25). There was no dissent.

What did Lawrence change in Montana law?

Lawrence answered a question the Court described as having “no Montana cases directly on point.” It adopted the general rule that partition is a matter of right for a cotenant (at 321). It also set out how a partition court adjusts equities between cotenants, and it made clear that a divorce decree must expressly provide for any refund of support in the form of home equity (at 322–24).

Later decisions cite Lawrence, including the Montana Supreme Court in Estate of Garland, 279 Mont. 269 (1996), and Dern v. Dern, 279 Mont. 138 (1996), on accounting between cotenants. It is also cited in Flood v. Kalinyaprak, 2004 MT 15; Kellogg v. Dearborn Information Services, LLC, 2005 MT 188; and In re Formation of East Bench Irrigation District, 2008 MT 210. Courts in Wyoming and Colorado have cited it too.

Which Montana laws and rules apply?

  • § 70-29-101, MCA: who may bring an action for partition (unchanged in substance from the text the Court quoted)
  • § 70-29-201, MCA: the rights of all parties may be tried and determined
  • § 70-29-202, MCA: when the court orders a sale or an actual partition
  • § 40-4-208, MCA: modifying support and property provisions of a decree (relevant to the unresolved decree here)

When might Lawrence apply to you?

  • Siblings inherit or receive a house together. One co-owner who wants out can generally ask a court for partition, and, if the home cannot be divided, a sale.
  • A divorce decree left the house “until further order.” Once the children are grown, the house may be partitioned. The accounting will look at who paid what after the divorce.
  • One co-owner paid the mortgage for years. Montana partition courts credit a cotenant who paid more than his or her share of principal, interest, taxes and insurance (at 324).

How hard is it to overturn a partition ruling in Montana?

It depends on the issue:

  • Many partition questions, such as whether to order a sale, are reviewed for abuse of discretion (186 Mont. at 318).
  • Findings stand unless there is “no substantial basis” for them and no “clear and satisfactory showing” supports them (at 325).
  • A legal rule, such as a cotenant’s right to partition, can decide the case outright. That is what happened here, when the Court adopted the general rule (at 321–22).

Statutes and rules

Later decisions citing this case

The Boland Aarab Way

Thomas E. Boland represented the five adult children in this appeal. The result was mixed. The Court ordered the sale their father sought, but it protected the children on the support-credit issue and on the carrying costs they had paid. Tom was admitted in 1974 and practiced in Great Falls from 1979. In 2017 his daughter, Caitlin Boland Aarab, and Samir F. Aarab founded Boland Aarab PLLP as the successor to his practice. We publish mixed results because they show how the law actually works. Careful accounting of who paid what still matters in our serious trucking and injury cases and wrongful death claims.

Frequently Asked Questions

Can a Montana court refuse to partition co-owned property? Only in limited circumstances. A cotenant is entitled to partition as a matter of right, but partition may be denied where it would be against public policy or legal or equitable principles, or where the parties agreed to waive it (Lawrence, 186 Mont. at 321).

Do child support payments count toward a parent’s equity in the family home? Not unless the divorce judgment clearly says so. Support is for the children’s necessities of life (at 322–23).

Does a co-owner living in the home owe rent to the other owners? Generally not for the period before partition is sought. A cotenant in possession must account for use and occupancy beyond his share after the other cotenant demands possession, here by filing suit (at 324).

Work With the Practice Behind These Cases

Boland Aarab is a Great Falls trial firm built on the practice Tom Boland began. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.