1993 Conn. Super. Ct. 3640 | Conn. Super. Ct. | 1993
On September 13, 1991, the defendants filed the present action requesting that this court find the existence of the partnership and to direct the parties to finalize the terms of the agreement or, if the parties are unable to agree, a decree finding the terms of the agreement. The plaintiffs also seek monetary damages and an injunction restraining the defendants from in any way conveying or transferring their interests in the property.
Additionally, on September 13, 1991, the plaintiffs recorded their notice of lis pendens with the Town Clerk for the City of Middletown. On February 11, 1993, the defendants filed the present motion for discharge of the notice of lis pendens. The defendants argue that the plaintiffs' notice of lis pendens should be discharged, pursuant to General Statutes Sec.
Grounds for Discharge under General Statutes Sec.
General Statutes Sec. 53-325d provides that:
In any action in which (1) a notice of lis pendens was recorded which is not intended to affect real property, or (2) the recorded notice does not contain the information required by subsection (a) of section
52-325 or section46b-80 , as the case may be, or (3) service of process or service of the certified copy of the notice of lis pendens was not made in accordance with statutory requirements, or (4) when, for any other reason, the recorded notice of lis pendens never became effective or has become of no effect, any interested party may file a motion requesting the court to discharge the recorded notice of lis pendens. If the court finds that such notice never became effective or has become of no effect, it shall issue its order declaring that such notice of lis pendens is invalid and discharged, and that the same does not constitute constructive notice. A certified copy of such order may be recorded in the land records of the town in which the notice of lis pendens was recorded.
A. Whether the recorded notice was not intended to affect real property.
General Statutes Sec.
[A]ctions "intended to affect real property" means (1) actions whose object and purpose is to determine the title or rights of the parties in, to, under or over some particular real property [quiet title]; (2) actions whose object and purpose is to establish or enforce previously acquired interests in real property [foreclosure]; (3) actions which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property[, such as, an action on a lease agreement]. CT Page 3643
General Statutes Sec.
This court finds that if the plaintiffs' action is intended to affect real property it falls within the provisions of General Statutes Sec.
52-325 (b)(3) where an action affects the title to or interest in real property, but is not the main purpose of the action. For example, an action on a lease agreement affects an interest in real property, although, not the main purpose of the action. Stratton v. Ward,39 Conn. Super. Ct. 195 ,474 A.2d 113 (Super.Ct. 1983) (where the court held, in denying a motion to discharge a notice of lis pendens, that a lease is an interest in land which is intended to affect real estate).In the present action, the plaintiffs' main purpose is to have the court recognize and enforce an alleged partnership agreement. At the time when the alleged partnership agreement was entered into, title to the subject property was in the names of the defendants. The court finds that there is nothing in the record which indicates the transfer of any property interest to the plaintiffs involving the subject property. See Maturo v. Scranton,
177 Conn. 569 ,418 A.2d 928 (1979).The only interest, based on the allegations in the pleading, that the plaintiff has is a partnership interest which does not affect the title to or interest in the subject property. Wheeler v. Polasek,
21 Conn. App. 32 ,571 A.2d 129 (1990).Section
52-325 (a) allows a party to place a notice of lis pendens on the land records when "the action is intended to affect real property." Section52-325 (b) specifies that in order for an action to affect real property, its purpose or outcome must determine the rights of the parties in or to the particular real property, or it must establish or enforce previously acquired interests in it.The claims set forth in the plaintiff's complaint are claims against the partnership itself and are based on the Uniform Partnership Act, as found in General Statutes Sec.
34-39 et seq. Although the plaintiff claims that he has a realty interest in the partnership's property and a consequent right to secure that interest with a notice of CT Page 3644 lis pendens, his claim must fail. As specified by the Uniform Partnership Act, a partnership interest is personal property; General Statutes Sec. 34-64; and the partnership realty is considered personalty with respect to any individual partner's rights therein. See Royce Shopping Centers, Inc. v. Putnam Shopping Center Associates, United States District Court, District of Connecticut, Docket No. H-78-538 (March 6, 1979); Bretarm Investment Associates v. Previdini, Superior Court, judicial district of New Haven, Docket No. 266724 (January 20, 1989). It is axiomatic, therefore, that none of the plaintiffs claims affect the real property of the partnership within the meaning of Sec.52-325 .The plaintiffs interest as a partner . . . is a personalty interest; the suit does not affect real property within the meaning of Sec.
52-325 .
Id., 33-34.
Therefore, this court finds that the present action for the determination of the existence and terms of a partnership agreement does not affect real property, pursuant to General Statutes Sec.
B. Whether the recorded notice of lis pendens satisfies the formal requirements of General Statutes Sec.
General Statutes Sec.
[I]f the actions is intended to affect real property, [the plaintiff] may cause to be recorded in the office of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and the object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the property. CT Page 3645
The defendants argue that the plaintiffs' recorded notice fails to provide the names of the defendants and is therefore facially invalid. The purpose of General Statutes Sec.
Therefore, this court finds that the parties are sufficiently identified in the recorded notice to apprise the parties of the pending action and the interest that are affected. Accordingly, the recorded notice of lis pendens is not found to be invalid pursuant to General Statutes Sec.
C. Whether the recorded notice has become of no effect pursuant to General Statutes Sec.
General Statutes Sec.
As mentioned previously, this court finds that the present action is not intended to affect the title to or a property interest in the subject property. Even if this court found that the present action affects title to or a property interest in the subject property, the recorded notice of lis pendens has become of no effect, pursuant to General Statutes Sec.
On December 23, 1991, three months after the plaintiffs recorded their notice of lis pendens, the defendants conveyed the subject property to One Court Street, Inc., a Connecticut corporation for $165,000.00. Therefore, this court finds that the subsequent conveyances of the subject property to One Court Street, Inc., has rendered the present recorded notice of lis pendens of no effect.
This court finds that the present recorded notice of lis pendens is invalid, pursuant to General Statutes Sec.
This court grants the defendants' motion for discharge of the notice of lis pendens on the ground that the recorded notice is invalid, pursuant to General Statutes Sec.
JOHN F. WALSH, J.