What is a “Partition In Kind”?

Partition is the legal procedure used to divide property among co-owners, often used when co-owners disagree about the property’s sale or division. In California, partition can be achieved through multiple methods: (1) Partition In Kind; (2) Partition by Sale; and (3) Partition by Appraisal. This article only explores Partition In Kind’s specific purpose and procedure as the law’s favored method. Understanding how Partition In Kind works and in what circumstances it is appropriate allows co-owners to better navigate a partition action’s start. 

What is a Partition? 

Partition is a legal procedure that divides real and personal property among co-owners. A partition suit’s primary purpose is severing the unity of possession among co-owners, meaning partition terminates co-owner’s common interests in the property. (Cummings v. Dessel, (2017) 13 Cal.App.5th 589.) Partitions largely avoids the inconveniences and conflicts arising from joint possession, while facilitating the transmission of title and avoiding unreasonable restraints on the property’s use and enjoyment. (Ibid.; Summers v. Superior Court, (2018) 24 Cal.App.5th 138.) 

Co-owners of property have an absolute right to bring partition actions against their counterparts. (Thomas v. Witte, (1963) 214 Cal.App.2d 322.) So, while courts can facilitate the partition process, the decision to bring a partition action is not a matter of judicial discretion because partitions are incidents of co-ownership. (Ibid.) This absolute right to bring a partition action can, however, be modified or waived by contracts, either expressly or by implication. (Schwartz v. Shapiro, (1964) 229 Cal.App.2d 238.) 

What is Partition In Kind? 

Partition In Kind is the process of physically dividing co-owned property in distinct portions that are separately titled. (Code Civ. Proc., § 874.312.) Partition In Kind is the method generally favored by law because it allows co-owners to avoid selling the property against their will. As such, this method is used to retain co-owners’ interests unless it would result in significant prejudice to the co-owners as a group. (Schwartz v. Shapiro, 229 Cal.App.2d at 257.)

When is Partition In Kind Used?

Courts use partition in kind when the division would not cause the co-owners, as a group, significant prejudice. (Code Civ. Proc., § 874.318.) The test courts use to determine whether partition in kind will result in significant prejudice to the co-owners as a group asks whether the value of each co-owner’s share after partition would be materially less than their share of the procedures if the property were sold. (Code Civ. Proc., § 874.319(a)(2); Williams v. Wells Fargo Bank & Union Trust Co., (1943) 56 Cal.App.2d 645.)

Courts consider several additional factors when determining whether partition in kind will result in significant prejudice to the co-owners as a group. These factors include: 

(1) Whether the property practicably can be divided among the co-owners. 

(2) Evidence showing how long a co-owner and at least of other relatives, or a relative of another co-owner, have owned or possessed the property.  

(3) A co-owner’s sentimental attachment to the property, including attachments arising out of the property’s ancestral or other unique value specific to the co-tenant. 

(4) The co-owner’s lawful use of the property and the degree to which that co-owner would be harmed if they could not continue the same use of the property; and, 

(5) the degree to which co-owners have contributed their pro rata share of property taxes, insurance, and expenses associated with maintaining ownership of the property, or contributions to the property’s physical improvement, maintenance, or upkeep. (Code Civ. Proc., §§ 874.319(a)(1)-(6).)  

In addition to the listed factors, courts can consider any other factor relevant to the circumstances surrounding partition. (Code Civ. Proc., § 874.319(a)(7).)  Courts cannot, however, deem any factor dispositive without first weighing the totality of all relevant factors and circumstances. (Code Civ. Proc., § 874.319(b).)  

If the court finds partition in kind is appropriate, they may require certain co-owners to make payments to others. These payments ensure the partition is just and proportionate in value to the fractional interests each co-owner held in the property. (Code Civ. Proc., § 874.318.) The court may also allocate portions of the property to unknown, unlocatable, or defaulted co-owners if their interests were not previously bought out by the remaining co-owners. (Ibid.) 

Oppositely, when the factors indicate partition in kind is not feasible without inflicting significant prejudice on the co-owners, courts may opt for partition by sale instead. (Code Civ. Proc., § 872.820.) And, if partition in kind is appropriate but opposed by at least one co-owner, that co-owner bears the burden of proving partition in kind would result in significant prejudice. (Sting v. Beckham, (1949) 94 Cal.App.2d 823, 824.)

What is an Example? 

“Shawn” and “Julie” are siblings who inherited a parcel of land from their late father. The parcel of land is a 20-acre lot located in rural California. Shawn and Julie are their father’s only heirs but, they can’t agree on what they want to do with the property. Shawn wants to keep and develop the parcel as agricultural land while Julie wants to build herself a vacation home on part of it. Shawn and Julie do, however, agree that they do not want to sell the land. 

After exploring their options, Shawn and Julie decide to pursue a partition in kind to avoid a forced sale of the property. Shawn and Julie file their action seeking the court’s approval to divide the land into distinct, separately titled portions. Specifically, Shawn and Julie ask the court to divide the land in a way that fairly distributes its value while ensuring they each receive a physically distinct portion of the land. Using the necessary factors the court determines that partition in kind is appropriate because it will not cause significant prejudice to Shawn and Julie as a group.

Now that the partition in kind is made, Shawn and Julie are no longer co-owners of the property they inherited from their father. Instead, Shawn and Julie each own distinct parts of the property that they both have the right to use and develop as agricultural land or to build a vacation home without interfering with each other’s ownership.  

Conclusion

The Underwood Law Firm has a team of experienced lawyers who can help guide you through complicated legal matters and help you pursue solutions like partition to ensure you recover the entirety of what you are legally entitled to. We are here to help.