Code of Civil Procedure section 872.820 outlines the requirements for a partition by sale. If the Court does allow a sale to proceed despite the preference for physical partition, then it must divide the proceeds in accordance with ownership interests. This is an important step in the distribution process, as the Court must first determine the initial distributions prior to adjusting for credits and offsets by each party during the accounting phase of litigation.
Code of Civil Procedure section 872.820 states:
Notwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment in the following situations:
(a) The parties agree to such relief, by their pleadings or otherwise.
(b) The court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property. For the purpose of making the determination, the court may appoint a referee and take into account his report.
(Amended by Stats. 1976, c. 73, p. 110, § 6.)
What Is an Example?“Shawn” and “Julie” are an unmarried couple who decide to buy a house together. They purchase a nice single-family residence as joint tenants and begin living together.
Unfortunately, Shawn and Julie’s relationship does not work out, and they break up. They cannot come to an agreement on what to do with the property. Shawn wants to sell the house and move on with his life, but Julie does not want to sell the house. Shawn sues for partition by sale.
At trial, Shawn argues that selling the property would be more equitable than dividing it because it is a single-family residence, and partition in kind would be impractical. Julie argues that a partition in kind would be possible. Pursuant to CCP § 872.820, the court appoints a referee to assist in this determination.
The referee reports to the court that a partition by sale would be more equitable since a partition in kind of the property would be impractical. The court takes this report into account and determines that the property should be sold, and the sale proceeds divided.
Law Revision Commission Comments (CCP § 872.820)1976 Addition
Section 872.820 represents an exception to the rule of partition by division stated in Section 872.810. The court may order a sale under the terms of this section; in addition, partition by appraisal may be available under Chapter 7 (commencing with Section 873.910).
Subdivision (b) changes the standard for allowing a sale of the property from “great prejudice” to “more equitable,” thereby enabling sale in cases in which it previously was precluded. See former Sections 763, 752 (real property), 752a (personal property). The reference to a referee for determination whether partition by sale would be more equitable may include a further request for determination whether public or private sale would be more appropriate. See Section 873.520. The portion of former Section 763 requiring sale in the case of a life estate with contingent remainder is not continued.
It should be noted that the provision formerly found in Section 763 which permitted sale where the site of an incorporated town or city was included within the exterior boundaries of the property has not been continued because it is obsolete.
Assembly Committee CommentAs is the case with many of the partition statutes, section 872.820 does not include a comment from the Legislature in its official capacity. This is the norm, however, because the Legislature essentially endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.
In fact, the introduction to Assembly Bill 1671 (the bill that contained the new partition laws) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” This demonstrates that the intent of the Legislature was more or less in line with that of the Revision Commission.
As to the comment itself, therein, the Revision Commission points out that Section 872.820 allows the court to order a partition by sale under the “more equitable” standard, where the standard used to be “great prejudice” under section 763.
Tellingly, former Section 763 was a confusing statute that outlined the requisite findings needed to proceed with a partition by sale, as opposed to one by division. It provided:
“When, after the final confirmation of the report of such survey and appraisement, it appears by evidence to the satisfaction of the court that an equitable partition of the whole property is impracticable, and a sale of the site of such city or town, or any portion thereof, will be for the best interests of the owners of the whole property, it must order a sale thereof. . .” (Id.)
But the Revision Commission, and thereafter the California Legislature, axed this standard. Instead of requiring “great prejudice,” “the new provisions provide for a presumption in favor of physical division which will control in the absence of proof that under the circumstances, sale would be ‘more equitable’ than division.” (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365.)
Now, with the passing of the Partition of Real Property Act in 2022, courts even have official guidance on what may constitute “equitable” circumstances permitting partition by sale.
Under Code of Civil Procedure section 874.319, the court must consider, for instance, whether physical partition is practicable, whether cotenants have special sentimental attachment to the property, evidence of collective duration of ownership, and “any other relevant factor,” among others.
Nevertheless, the first factor will usually control, as most properties are subject to strict zoning regulations that would prevent their being subdivided into smaller parcels.