Code of Civil Procedure 873.280 outlines the actions the referee must take in executing the partition by division. Once the division is completed, the referee must file a report that includes the specific items outlined below. This statute is important because it lets the parties and the court know what the referee recommends. It also gives the parties the basis for the referee’s decision, which they might use to object to confirmation of the referee’s report down the line.
Code of Civil Procedure section 873.280 states
Amended by Stats. 1976, c. 73, p. 110, § 6.)
What is an example?“Shawn” and “Julie” are an unmarried couple who want to buy a home together. They find a nice home in Los Angeles and buy it as joint tenants with a one-half interest each. They then move in together.
Unfortunately, Shawn and Julie’s relationship doesn’t work out, and they break up. They cannot agree on what to do with the property. Shawn wants to sell the property and move on with his life, so he sues for partition by sale.
Eventually, the court orders a partition by sale, and appoints a referee to oversee the partition. After some investigation, the referee files a report of his actions to the court, pursuant to CCP § 873.280. The referee also gives notice to Shawn and Julie of his report.
In the referee’s reports, he describes the property and recommends a partition by sale, with Shawn and Julie each receiving half of the sale proceeds. The referee then recommends closing a public road into the property.
Law Revision Commission Comments (CCP § 873.280)1976 Addition
Section 873.280 continues the substance of the first sentence of former Section 765 with the added requirement of any recommendations as to owelty (Section 873.250) and as to public and private ways (Section 873.090). The description required by subdivision (b)(2) must be by metes and bounds, or lots and blocks, or such other method as will enable the precise location of each portion.
Assembly Committee CommentsAs is the case with most of the partition statutes, section 873.280 does not include a an “official” Assembly Committee Comment from the California Legislature. But this is not unusual. That’s because the Legislature 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 substantially in line with that of the Revision Commission.
As to the comment itself, it makes reference to former Section 765 (one of the statutes the 1976 partition revisions superseded). Relevant here, that section provided:
“The referees must make a report of their proceedings, specifying therein the manner in which they executed their trust, and describing the property divided, and the shares allotted to each party, with a particular description of each share. Any party to the action, after giving at least ten days’ notice in writing to the other parties who have appeared therein of his intention to do so, may move the court to confirm, change, modify or set aside such report.”
As one can see, new Section 873.280 closely mirrors that of former section 765. And there is little needed from the Legislature in terms of guidance on how this statute operates in practice. Much like in the cases of partitions by sale, the referee must issue a report that includes the items spelled out in the statute following the physical division. (see CCP § 873.710.)