                                    IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


    MUKESH NARANG, as Trustee of the Rakesh Malhotra Qualified
    Personal Residence Trust; RAKESH MALHOTRA, a single man,
                          Plaintiffs/Appellees,

                                      v.

   SUDHIR RANJAN, as Trustee of Neera Malhotra Qualified Personal
       Residence Trust; NEERA MALHOTRA, a single woman,
                        Defendants/Appellants,

SUDHIR RANJAN, as Trustee of the Malhotra Children’s Trust UAD 5-10-
                    93, Intervenor/Appellant.

                           No. 1 CA-CV 15-0125
                            FILED 6-23-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-006427
                The Honorable Dawn M. Bergin, Judge

                                AFFIRMED


                                COUNSEL

Stinson Leonard Street LLP, Phoenix
By Lonnie J. Williams, Jr.
Counsel for Plaintiffs/Appellees

Fennemore Craig, P.C., Phoenix
By Alexander R. Arpad
Counsel for Defendants/Appellants
                 MALHOTRA et al. v. MALHOTRA, et al.
                       Opinion of the Court



                                OPINION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined.


G E M M I L L, Judge:

¶1            This is an appeal from an order compelling a partition sale of
a residence owned by two separate Qualified Personal Residence Trusts
(“QPRTs”) created by the trustors, Neera Malhotra and Rakesh Malhotra.
The trial court held the residence was subject to partition and ordered the
sales proceeds be allocated equally between the Neera Malhotra QPRT
(“Neera QPRT”) and the Rakesh Malhotra QPRT (“Rakesh QPRT”). Neera
Malhotra and Sudhir Ranjan, the trustee of the Neera QPRT and the
Malhotra Children’s Trust UAD 5-10-93 (“Children’s Trust”) (collectively
“Appellants”), appeal the compelled partition.

                             BACKGROUND

¶2            The property at issue is a residence that Rakesh and Neera
owned as community property during their marriage. In 2000, while still
married, Neera and Rakesh each transferred his or her entire undivided
one-half interest in the residence to a trust: Neera transferred her interest
to the Neera Malhotra QPRT and Rakesh transferred his interest to the
Rakesh Malhotra QPRT.

¶3            A QPRT is an irrevocable trust into which the donor places a
personal residence for gift and estate tax purposes. The Neera QPRT
terminates in 2030 or upon her death; the Rakesh QPRT terminates in 2020
or upon his death. Other than the durations, the provisions of the QPRTs
are identical. Each QPRT names the Children’s Trust as the remainder
beneficiary upon expiration of the trust’s term. Sudhir Ranjan is the trustee
of the Neera QPRT, and Mukesh Narang is the trustee of the Rakesh QPRT.1

1  Rakesh Malhotra and Mukesh Narang, trustee of the Rakesh Malhotra
QPRT, contend that Ranjan, as trustee of the Children’s Trust, failed to
make an appearance pursuant to Arizona Rule of Civil Procedure 24(d) and,
therefore, has no standing in this appeal as an Intervenor. However, the
trial court granted Ranjan’s motion to intervene as trustee of the Children’s



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                       Opinion of the Court


¶4              Pursuant to the QPRTs, Neera and Rakesh, as trustors, each
had the exclusive right to “the use, occupancy and enjoyment of the
Residence” rent-free for the term of the trust. The “Residence” is defined
as “the real estate described in Schedule A and any substitute personal
residence acquired by the Trustee in accordance with the provisions of this
Agreement.” Schedule A describes this specific home. Each QPRT allows
the trustor to sell the Residence and purchase a replacement residence
within two years of the sale or the proceeds would convert to a Grantor
Retained Annuity Trust (“GRAT”) which would pay the trustor an annuity.
If a trustor is living at the expiration of the trust term, the remaining QPRT
or GRAT assets are distributed to the Children’s Trust. The trustor may
designate in his or her will who would receive the remaining QPRT or
GRAT assets, subject to the interest of the Children’s Trust, if he or she were
to die during the term of the trust.

¶5            Rakesh and Neera divorced in 2011. The decree did not
allocate the residence because it was owned by the QPRTs and was no
longer community property. In 2013, Rakesh and Narang as trustee of the
Rakesh Malhotra QPRT (“Appellees”) filed an action seeking to partition
the residence owned by the QPRTs. Both parties filed motions for judgment
on the pleadings. In allowing partition, the court concluded any interest
the Children’s Trust had in the remainder of each QPRT estate would
remain the same after partition and, therefore, would not be prejudiced.

¶6             Having decided it would allow partition, the court then held
an evidentiary hearing to determine how to partition the property and
allocate sales proceeds among the interested parties, and found the QPRTs
had an equal share or interest in the property. Finding the residence could
not be divided in kind and that partition “in time,” as proposed by
Appellants, was “impractical” and not supported by authority, the court
ordered the residence sold in partition and the proceeds distributed equally
to the two QPRT trustees. Appellants filed a timely notice of appeal from
the order compelling partition.


Trust. Ranjan also sought to join in the answer and counterclaim filed by
Neera and the Neera QPRT trustee. The court granted that motion.
Therefore, the Intervenor has joined Neera and the Neera QPRT trustee’s
answer and has appeared pursuant to Rule 24(d). Additionally, the
Intervenor joined every filing following that order, including the filings in
this court, and Appellees did not object. Accordingly, the Intervenor has
standing in this appeal.


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                       Opinion of the Court


¶7            In furtherance of the partition order, the trial court appointed
a real estate agent to list the property for sale and ordered the parties to
seek an emergency hearing if they disagreed with the agent’s
recommendation regarding a counteroffer. Appellants filed a timely
amended notice of appeal from this order.

¶8           After the amended order compelling partition, the realtor
received two offers on the property in December 2015. Appellants
disagreed about whether to make a counteroffer of $1.7 million and
requested an emergency hearing. After the hearing, the trial court
authorized the real estate agent to make a $1.7 million counteroffer that
would be binding upon Appellants. That order was stayed by the trial court
pending a ruling from this court on Appellants’ motion to stay filed herein.

                                 ANALYSIS

¶9            Appellants present two issues on appeal: whether this
residence is subject to partition and, if so, whether the partition order is
proper in light of other remedies and adequately protects Appellants’
interests.

               Partition is Permissible Under Arizona Law

¶10           Whether this QPRT-owned property is subject to partition is
a question of law that we review de novo. See In re Naarden Trust, 195 Ariz.
526, 528, ¶ 4 (App. 1999). An owner of any interest in real property may
seek partition of the property between himself and other owners of the
property. Ariz. Rev. Stat. (“A.R.S.”) § 12-1211; see also McCready v.
McCready, 168 Ariz. 1, 3 (App. 1991) (recognizing that “the right of partition
is an incident of common ownership”). Arizona partition law is governed
by statute. See A.R.S. §§ 12-1211 to -1225; Cohen v. Frey, 215 Ariz. 62, 65, ¶ 6
(2007) (explaining “partition is a statutory procedure and, absent an
agreement between the parties to voluntarily divide the property, any
remedy must comply with the statutory scheme”).

¶11           The key Arizona statute is A.R.S. § 12-1220(A):

       When a partition is made between an owner who holds an
       estate for a term of years or for life with others who hold equal
       or greater estates, the partition shall not be prejudicial to those
       entitled to the reversion or remainder of such estates.



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                        Opinion of the Court


Appellants contend that under A.R.S. § 12-1220(A), partition is not available
because there are non-concurrent property interests involved; specifically,
the Rakesh QPRT terminates in 2020 while the Neera QPRT terminates in
2030, and the Children’s Trust has remainder interests in the property of
each QPRT. We agree with Appellants that § 12-1220(A) applies, but we
conclude it allows, rather than prohibits, partition because the beneficial
and future interests can be protected.

¶12            When interpreting a statute, “[w]ords and phrases shall be
construed according to the common and approved use of the language.”
A.R.S. § 1-213. “We first look to the plain language of the statute as the most
reliable indicator of its meaning.” Special Fund Div. v. Indus. Comm’n
(Sordia), 224 Ariz. 29, 31, ¶ 8 (App. 2010). “If the language is clear and
unambiguous, we give effect to that language and do not employ other
methods of statutory construction.” State v. Pledger, 236 Ariz. 469, 471, ¶ 8
(App. 2015). See also Prince & Princess Enters., LLC v. State ex rel. Ariz. Dep’t
of Health Servs., 221 Ariz. 5, 6, ¶ 5 (App. 2008).

           Non-Concurrent Interests Do Not Preclude Partition

¶13             This case does not fit neatly into the traditional property
concepts of life estates and fee interests. The trustees of each QPRT hold
legal title to the trust property for differing terms of years, and each trustor
has a beneficial residency interest in the trust property for differing terms
of years. See Williamson v. PVOrbit, Inc., 228 Ariz. 69, 72, ¶ 16 (App. 2011)
(“In a trust, the trustees hold legal title and the beneficiaries hold equitable
title.”) (citing Dunlap Investors Ltd. v. Hogan, 133 Ariz. 130, 132 (1982)
(emphasis in original)).

¶14             Accordingly, A.R.S. § 12-1220(A) is applicable because the
trustors and the QPRTs (by the respective trustees) own interests in the real
property in the form of “estate[s] for a term of years or for life.” See Thomas
F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests, 38
(2d ed. 1984) (“An estate for years, also commonly called a term of years or
a lease for years, is an estate the duration of which is absolutely computable
. . . from the moment of its creation”) (footnote omitted); see also A.R.S. § 14-
1201(17) (defining “estate” as property of the trust); A.R.S. § 14-10103(13)
(defining “property” as “anything that may be the subject of ownership,
whether real or personal, legal or equitable, or any interest in anything that
may be the subject of ownership.”). The QPRTs currently own legal title to




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                       Opinion of the Court

the entire property equally but for differing durations, and Rakesh’s and
Neera’s possessory interests also exist for differing durations.

¶15            Appellants contend § 12-1220(A) should be interpreted as
prohibiting partition because of the non-concurrent interests. They rely on
Beach v. Beach, 74 P.3d 1, 3-5 (Colo. 2003), which applied a Colorado
common law rule that partition is permitted only for concurrent interests
and held that a party with a life estate in an addition on a home was not
entitled to partition with the owner of the remainder interest in the
addition. But Arizona partition law is governed by statute. See supra ¶ 10.
Under § 12-1220(A), partition is permitted between the owner of an estate
for years or life “with others who hold equal or greater estates,” so long as
partition does not prejudice the rights of the reversion or remainder
holders. Colorado had no such statute in place at the time Beach was
decided and that case is therefore unpersuasive.

              Appellants Are Not Prejudiced by Partition

¶16            The trust property is defined as the “undivided one-half (1/2)
interest in the Residence.” The QPRTs define “the Residence” as the current
home “and any substitute personal residence acquired by the Trustee[s] in
accordance with the provisions of this Agreement.” Pursuant to the QPRT
terms, the residence may be sold without altering the nature of the trust.
The sales proceeds must be used to purchase a replacement residence (also
subject to the QPRT) or be converted to an annuity subject to similar terms.
Thus, the QPRTs through their trustees remain owners of the trust
property, whether that property is the current residence, a GRAT annuity,
or a replacement residence, for the term of each party’s trust, i.e., until 2020
for the Rakesh QPRT and 2030 for the Neera QPRT.

¶17           Appellants’ interests until 2030 are not necessarily in the
current residence, but in the trust property that, under the terms of the
Neera QPRT, is “the Residence” or “any substitute residence” or an annuity
if no replacement residence is purchased within two years. As a result,
partition does not affect Neera’s beneficial interest in the trust property.
Similarly, the Children’s Trust holds a remainder interest in the trust
property, whatever form that may take over time. In light of the fact that
the QPRTs expressly define “the Residence” to include a substitute
residence in which Appellants’ interests would continue after a partition,
the different lengths of the QPRT terms do not preclude partition in this
case.




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                  MALHOTRA et al. v. MALHOTRA, et al.
                        Opinion of the Court


           Partition Does Not Grant Appellees a Greater Estate

¶18            Appellants argue that partition is not possible in this case
because it grants Appellees a greater interest than they own at present,
citing a Texas case, Luker v. Luker, 226 S.W.2d 482 (Tex. Civ. App. 1949).
Luker held that the trial court erred in awarding the partition plaintiff a fee
simple title to the parcel in which he owned only a one-third life estate. Id.
The appellate court held that “[a] life estate and a reversionary estate in a
tract of land are distinct and separate estates” owned in severalty, not in
common. Id. at 483. Applying a statute nearly identical to A.R.S. § 12-
1220(A),2 Luker held that because the partition plaintiff did not own a fee
estate, he was not entitled to participate in partition to obtain a higher estate
than he currently owned. Id. The court did not hold the partition plaintiff
had no right to partition at all. Id. Appellants’ citation to Evans v. Graves,
166 S.W.2d 955, 959 (Tex. Civ. App. 1942), is also unpersuasive because the
court in that case held only that the holder of a life estate interest cannot
obtain a fee interest in a partition action.

¶19           A sale would entitle Rakesh to an annuity until 2020 or would
allow the trustee to purchase a replacement residence in which Rakesh
would have a right to live rent-free until 2020, when it would then go to the
Children’s Trust, unless he dies before 2020 and leaves his reversionary
interest to a third party. Similarly, Neera would have an interest in a
replacement home or annuity payment until 2030. We conclude, therefore,
that partition does not give Appellees a “greater estate” than they already
have.
                 Rakesh Did Not Waive Right to Partition

¶20           Appellants also contend that partition is not permitted
because the terms of the QPRTs do not expressly provide for partition and


2 The Texas statute, Article 6098, R.C.S., stated, “When a partition is made
between a joint owner who holds an estate for a term of years or for life
with others who hold equal or greater estates, such partition shall not be
prejudicial to those entitled to the reversion or remainder of such estates.”
This version was repealed in 1983 and replaced with V.T.C.A. § 23.003,
which states, “A partition of real property involving an owner of a life estate
or an estate for years and other owners of equal or greater estate does not
prejudice the rights of an owner of a revision or remainder interest.”




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                       Opinion of the Court

by entering into the QPRTs, the parties waived any right to partition.
However, nothing in the QPRTs expressly precludes partition, and the
voluntary or involuntary sale of the residence is permitted.3

¶21           Generally, a waiver of the right to partition occurs if a
partition would violate the parties’ agreement. See Cohen, 215 Ariz. at 65-
66 (holding wife’s right to partition waived because she previously agreed
husband alone had right to live in or sell house as he chose). The QPRTs,
however, do not implicitly or explicitly waive the right to partition. The
QPRTs allow a sale of the residence, and a sale does not necessarily negate
the tax benefits of the QPRTs.

¶22           Furthermore, Appellants’ expert testified that the QPRTs
could have included additional restrictions on partition to the extent such
provisions do not violate applicable tax regulations. There was no evidence
presented that the Internal Revenue Code or other applicable regulations
prohibit a partition sale of QPRT property. See generally 26 C.F.R. § 25.2702-
5. Absent an express prohibition of partition in the QPRTs or the applicable
regulations, Appellants failed to establish that placing real property in a
QPRT constitutes a waiver of the right to partition.4

           Partition is Consistent with the QPRTs’ Provisions

¶23           Appellants also argue partition is not permitted because the
QPRTs prohibit commutation of the trustors’ occupancy interests. The
QPRTs state that “[c]ommutation of the Trustor’s interest in this trust is
prohibited.” The term “commutation” is explained in 26 C.F.R. § 25.2702-
5(c)(6), which states that a QPRT “must prohibit commutation
(prepayment) of the term holder’s interest.” A partition sale would not
constitute prepayment of the trustors’ interests because any sales proceeds

3 The QPRTs state that involuntary conversion has the same meaning as 26
U.S.C. § 1033(a) , which defines “involuntary conversion” as “theft, seizure,
or requisition or condemnation.”
4 Appellants also contend there was a question of fact as to whether the
trustors intended to waive partition rights by placing the property in the
QPRTs and that the trial court erroneously decided the matter on the
pleadings. However, Neera and the Neera QPRT trustee filed a motion for
judgment on the pleadings making the same arguments they make on
appeal. No evidence regarding the trustors’ intent was necessary because
this issue can be decided on the terms of the QPRTs. Therefore, judgment
on the pleadings was proper.


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                  MALHOTRA et al. v. MALHOTRA, et al.
                        Opinion of the Court

are also governed by the terms of the Rakesh QPRT until 2020 and the Neera
QPRT until 2030. Appellants offer no authority for their contention that
commutation is synonymous with partition.            No prepayment or
commutation of the trustors’ interests occurs with sale of the residence if
the terms of the QPRTs are followed.

¶24          Although we recognize that a personal residence is unique,
the QPRTs did not preclude the sale of the residence and a sale would not
deny the trustors the opportunity to continue residing in a residence for the
remaining term of each QPRT.

           The Children’s Trust is Not Prejudiced by Partition

¶25            Although The Children’s Trust cannot currently assert any
rights that would preclude a sale of the residence, the Children’s Trust has
an interest as the remainder beneficiary of the QPRTs pursuant to A.R.S. §
14-10103(2)(a), which defines “beneficiary” as one with “a present or future
beneficial interest in a trust, vested or contingent.” See also Pilafas, 172 Ariz.
at 210 (“Even a revocable trust vests the trust beneficiary with a legal right
to enforce the terms of the trust.”); In re Herbst, 206 Ariz. 214, 218, ¶ 21 (App.
2003) (same). Therefore, the interests of The Children’s Trust are entitled to
the protections afforded in the Arizona Trust Code. See A.R.S. §§ 14-10801
to 14-10804 and 14-11001 to 14-11003.

¶26            The Children’s Trust is not prejudiced here because it has an
interest in the trust property, but not the particular residence. Moreover,
the Children’s Trust has remedies under the Arizona Trust Code if the
trustees do not comply with the terms of the QPRTs.

                               Partition in Time

¶27            Appellants asked the trial court to consider a partition in time
that would authorize Rakesh to occupy the residence until the Rakesh
QPRT terminated in 2020, with Neera to occupy the residence until 2030.
Rakesh rejected this offer because he did not want to live in a 7000 square
foot house as a single person. The trial court concluded partition in time
was impractical and that there was very little authority for doing so.
Appellants cite only a case involving two parties with competing claims to
ownership of a chair. See In re Estate of McDowell, 345 N.Y.S.2d 828, 830
(N.Y. Sur. Ct. 1973). That court ordered the parties to share possession of
the chair for alternating six-month periods because the chair was “without




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                        Opinion of the Court

any apparent value other than of a sentimental nature.” Id. In contrast, the
residence here has substantial monetary value.

¶28             Appellants’ position would result in both parties having a
non-modifiable “exclusive right to the use, occupancy and enjoyment of the
[r]esidence” until 2020. The partition remedy the trial court granted is
appropriate here, where the co-owners of real property cannot reasonably
both occupy the property and “the court cannot arbitrarily decide that one
shall have the property to the exclusion of the other.” McCready, 168 Ariz.
at 4 (citing 68 C.J.S. § 168(2) (1950)). A sale is therefore appropriate, and the
court did not abuse its discretion in ordering partition by sale instead of
attempting a partition in time.5

                           Other Equitable Relief

¶29            Appellants further contend the trial court erred by denying
their request for other forms of equitable relief. Appellants argue this was
necessary and permissible under the Arizona Trust Code to mitigate the
prejudice to the future interest holder, i.e., the Children’s Trust. The
additional requested relief included (1) determining Rakesh’s claim for past
GRAT payments before distribution of any sales proceeds, (2) allocating
sales proceeds in a manner other than fifty percent to each QPRT, (3)
additional instructions to trustees such as limiting Rakesh’s ability to
change trustees, and (4) requiring court approval before making past GRAT
payments to Rakesh. Appellants argue these protections are necessary
because they fear Rakesh will claim past payments because he has not been
living in the house since 2006 and he has changed trustees twice.

¶30              The trial court appropriately declined to impose such
additional restrictions because Appellants failed to establish that Appellees
were not entitled to seek past GRAT payments and the remainder
beneficiaries have a remedy under the Arizona Trust Code to protect their
interests if, in fact, Appellees have violated the terms of the trust. See A.R.S.
§§ 14-10201 (court may intervene in administration of trust in any matter


5 Appellants argue the court also erred by failing to appoint commissioners
to attempt a fair division in kind pursuant to A.R.S. §§ 12-1214 to 12-1218.
However, the parties agreed partition in kind, i.e., dividing the property
into multiple parcels, was not possible. Appellants cannot now argue on
appeal the court erred by failing to do so.




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                       Opinion of the Court

including a request for instructions or action to declare rights); 14-11001
(remedies for breach of trust); 14-11002 to 11003 (setting forth damages).

¶31           To the extent Appellants’ request for equitable relief pursuant
to A.R.S. § 14-10201(A) and (C) constituted a request for instructions
pursuant to A.R.S. § 14-10201(A), this request was premature. If the need
should arise, the remainder beneficiaries have the ability to protect their
interests. Accordingly, we affirm the denial of equitable relief.

                              CONCLUSION

¶32           For these reasons, the order and amended order compelling
partition are affirmed, and Appellants’ motion to stay the sale of the
property is denied.




                                 :AA




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