When co-owners of real estate can't agree on what to do with their property, filing a partition lawsuit often becomes necessary. Many people hesitate, hoping the situation will resolve itself or that avoiding legal action will preserve relationships.
Unfortunately, our experience handling hundreds of partition cases across California has shown that delay rarely improves these situations. In fact, waiting typically exposes property owners to significant financial and legal risks that could have been avoided with prompt action.
If you're considering a partition lawsuit, here are ten important reasons why acting sooner rather than later protects your interests.
1. Your Co-Owner Could Take Out a HELOC
A home equity line of credit (HELOC) represents one of the most significant risks of delaying your partition action. Your co-owner can obtain a HELOC using the property as collateral without your permission, as long as they're on the title.
This creates a serious problem: when the property eventually sells, the HELOC must be paid off first, before any proceeds are distributed to the co-owners. Essentially, if your co-owner withdraws $50,000 or $100,000 through a HELOC, that amount is deducted from the total equity before you receive your share.
The situation becomes even more problematic if your co-owner defaults on the HELOC payments. In that case, the HELOC lender can initiate foreclosure proceedings, which could result in the property being sold at auction—typically for less than market value. This means you lose control over the sale process and may receive significantly less than you would through a court-supervised partition sale.
2. Risk of Fraudulent Transfers
When co-owners anticipate legal action, some may attempt to transfer their interest in the property to family members, friends, or other parties to shield assets from judgment. While courts have mechanisms to challenge fraudulent conveyances, these challenges add substantial time, legal costs, and complexity to your partition case.
If a questionable transfer occurs before you file your partition complaint, you may need to pursue additional legal remedies to reverse the transaction. This means litigating not just the partition itself, but also a separate claim to unwind the improper transfer.
Filing your partition action promptly establishes your legal claim on the record, which makes it significantly more difficult for a co-owner to improperly transfer their interest. Most attorneys will advise against such transfers once a partition case has been filed, as the transfers become much easier to challenge.
3. Mortgage Default and Carrying Costs
When a co-owner stops paying their share of the mortgage, property taxes, or insurance, you face a difficult decision. You can either cover these expenses yourself to protect the property from foreclosure, or risk losing the property entirely.
Most co-owners in this situation choose to make the payments, which can create significant financial hardship, especially if this continues for months or years. While California law allows you to seek reimbursement for payments made on behalf of the property through the partition accounting process, you must first have the resources to carry these costs.
The accounting process requires careful documentation of every payment you make—mortgage payments, property taxes, insurance premiums, and other necessary expenses. The longer you wait to file, the more complex this accounting becomes, and the more money you may need to advance to protect your investment in the property.
4. Property Damage and Waste
We've seen some truly heartbreaking cases. A house that burned down under suspicious circumstances. A property overrun with code violations after the co-owner turned it into an illegal boarding house. A home that became a meth lab cleanup site. A beautiful property left to rot until the city condemned it.
The legal term for this is "waste," but that sterile word doesn't capture the gut punch of watching a valuable asset destroyed. And while you can sue for damages, good luck collecting from someone who just burned down a house or let it fall apart. They're usually judgment-proof by that point.
Once you file your partition action, you can ask the court for help—maybe appointing a receiver to manage the property, or getting injunctive relief to prevent further damage. But you can't do any of that until you file. Every day you wait is another day they can damage what's partially yours.
5. Extended Timeline
This one's simple math. Partition cases take time—usually 12-18 months from filing to closing. If you wait nine months before filing, congratulations, you've just turned an 18-month process into a 27-month ordeal.
That's nine more months of stress. Nine more months of conflict. Nine more months of being tied to someone you probably can't stand anymore. Nine more months where any of the other risks on this list could happen.
The clock doesn't start until you file. Every day of "let's wait and see" is a day tacked onto the end of this process.
6. Housing Market Deterioration
Nobody has a crystal ball for the real estate market. But ask yourself this: if the market drops 15% while you're "waiting for the right time," how's that going to feel?
We saw this play out dramatically in 2008. Clients who filed their partition actions in 2006 got out at market peak. Clients who waited, hoping to avoid litigation, ended up selling in 2009 or 2010 for 30-40% less. That "waiting period" cost them hundreds of thousands of dollars.
You can't time the market perfectly. But you can avoid unnecessary exposure to market risk by not delaying what's already a lengthy process.
7. Rising Interest Rates
Interest rates matter more than you might think in partition cases.
Let's say your co-owner wants to buy you out. When rates are at 3%, they can afford to borrow more. When rates hit 7%, their buying power drops significantly. That buyout that seemed possible six months ago? Might be completely off the table now.
Or maybe the property has a great mortgage from 2020 at 2.75%. In a 7% rate environment, nobody wants to let go of that loan. This can affect settlement negotiations and make everything more complicated.
The rate environment changes fast. Delay can eliminate options that exist today.
8. Court Budget Crises and Backlogs
California courts run on tight budgets. When budget cuts hit, cases slow down. We've seen it happen repeatedly—budget crisis hits, courts reduce hours, judges get reassigned, and suddenly cases that used to take 12 months are taking 18 or 24 months.
You can't control when budget crises happen. But you can control whether you're at the front of the line or the back when it does happen. First in, first out. The people who filed early get their court dates. The people who waited get pushed further back.
File now, and you're ahead of the curve. Wait, and you might be filing right as things grind to a halt.
9. Tenant Complications
Here's a new headache: your co-owner decides to move in a tenant. Or worse, signs a long-term lease. Now you're not just dealing with your co-owner, you're dealing with California tenant protection laws.
Those tenants have rights. Real rights. You can't just kick them out because you want to sell. And many buyers won't touch a property with tenants in place, especially if those tenants have lease agreements or are protected under rent control ordinances.
This tanks your pool of potential buyers and can drag out the sale significantly. Some partition referees have to get creative—offering cash for keys, waiting for leases to expire, selling the property with tenants in place at a discount. All of it takes time and costs money.
File before they bring in tenants, and you avoid this entire mess.
10. Personal Health Issues and Generational Transfer
Nobody likes thinking about this one, but it's real.
What happens if you get sick while you're waiting? What if your co-owner dies? What if you die?
The problem doesn't go away. It gets inherited. Now your kids are fighting with their kids. Or your executor is dealing with their executor. What was a two-party dispute between people who at least knew each other becomes a multi-generational mess involving people who've never met and have no context for why this fight even started.
We've handled cases where the original co-owners are long gone, and their children or grandchildren are stuck cleaning up a partition case that should have been filed 20 years ago. The bitterness compounds. The complications multiply. The legal fees pile up.
Life is uncertain. Don't pass this problem on to the next generation.
The Bottom Line
Look, we're not saying you should sue first and ask questions later. If there's a real chance of working things out, explore it. Have the conversations. Try mediation. See if you can reach a voluntary agreement.
But once it becomes clear that's not happening—once you've hit the wall where your co-owner won't budge and you can't move forward—stop waiting. Every week you delay is a week where one of these ten risks can materialize. And most of them get worse the longer you wait.
In California, co-owners have what's called an "absolute right" to partition. That means if you can't agree, the court will force a sale. The process involves:
- Filing a complaint in Superior Court
- Determining each party's ownership percentage
- Appointing a partition referee (usually a real estate agent) to handle the sale
- Conducting an accounting to figure out who owes what
- Selling the property and distributing the proceeds
None of this happens quickly, and none of it starts until you file.
Don't Wait
The title of this post isn't hyperbole. We really have seen all ten of these things happen to clients who waited too long. Some of them happened in the same case.
Delay doesn't make partition cases easier. It makes them harder, more expensive, and more likely to result in outcomes you won't like. The co-owner who's being difficult now isn't going to become reasonable with time. The property that needs selling isn't going to sell itself.
If you're at the point where partition feels necessary, it probably is. And the best time to file was yesterday. The second best time is today.
Underwood Law Firm handles partition cases throughout California. We've done this hundreds of times, and we know what works. If you're dealing with a co-ownership dispute and need straight answers about your options, contact us today.
This post is for general information only and isn't legal advice. Every case is different, and you should talk to a lawyer about your specific situation.
