Vlademiro Faria v. Diana Faria Ferriter (2013)

MEMORANDUM OF DECISION

In this case, the court previously granted a motion to strike the complaint filed by the plaintiff for a partition action because “it does not plead the requirements necessary to request a partition under § 52–500 ․ The plaintiff has not made any allegations that establish that he has either actual possession or an immediate right to possession of the subject property, as required to qualify as a tenant in common and maintain a partition action under General Statutes §§ 52–495 and 52–500.”   Upon the granting of this motion to strike, the plaintiff now has filed an amended complaint.

The sole difference between the original complaint and the amended complaint is paragraph 2 which reads “[t]he plaintiff and defendant co-owners have a vested remainder interest in said real estate which is an immediate right entitling them to possession resulting in them being tenants in common with each holding an undivided one-quarter (1/4) interest in the same as set forth in the deed recorded in Volume 376, p. 718 of the Waterford Land Records.”

The substitute complaint continues to allege as the original complaint alleged that Ana I. Faria was granted a life use of the above-described real estate, and that Ana is still alive and currently resides in a nursing home.

The court remains of the opinion that the plaintiff has failed to allege a legally sufficient complaint.   The status as a remainderman gives no immediate right to possession of the property to the plaintiff remainderman.   Further, although the individual holding the life use, because of advanced age is unlikely to come back to reside on the subject premises, there is no indication in the pleadings or otherwise that the life use granted was contingent upon the actual residence in the property nor is there any indication of the intent to sever the life use between the two units on the property.

For these reasons, the court grants the defendant's motion to strike the amended complaint.

Cosgrove, J.

Cosgrove, Emmet L., J.