Code of Civil Procedure (CCP) Section 874.319 – Considerations for Partition in Kind

Section 874.319 of the partition statutes is important because it provides the factors to be considered when determining if partition in kind is appropriate. This section of the statute allows the court to determine whether partition in kind will prejudice the cotenants or parties and whether it is appropriate for the specific property.

Code of Civil Procedure section 874.319 states:

1. In determining whether partition in kind would result in great prejudice to the cotenants as a group, the court shall consider the following:
   1. Whether the property practicably can be divided among the cotenants.
   2. Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur.
   3. Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other.
   4. A cotenant's sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant.
   5. The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property.
   6. The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property.
   7. Any other relevant factor.
2. The court shall not consider any one factor in subdivision (a) to be dispositive without weighing the totality of all relevant factors and circumstances.

This section is similar to section 9 of the Uniform Partition of Heirs Property Act. This section of the statute was amended in 2022, and the new version made effective as of January 1, 2023. This amendment deleted “whether the heir’s property” from subdivision (a) (1), changing it to “whether the property.” This reflects the amendments of all the partition statutes to apply more widely to not just heirs’ property interests.

The Partition of Real Property Act was an outgrowth of a law review article titled Historic Partition Law Reform (2019) Texas A&M Legal Research Paper Series No. 19-27 by Thomas W. Mitchell (“Law Reform”). (see also Thomas W. Mitchell, Reforming Property Law to Address Devastating Land Loss, 66 Ala.L.Rev. 1, 9, 29 (2014).

The Act explicitly precludes utilization of the “economics-only” test that judges in a majority of sates developed. (see Law Reform, p. 73.) Under that test, courts would order heirs’ property sold if the theoretical economic value of the entire property were to be determined by the court to be significantly greater than the aggregate economic value of the parcels that would result from a division of the property. Using this test, judges give no weight, or at best, little consideration to non-economic values, including heritage values that may arise from longstanding ownership of a particular parcel of property by a family, the cultural or historical value of the property, or the harsh impact a sale might have upon an impoverished heir who was using the property for basic shelter. (see Law Reform, p. 74.)

Previously, advocates “overestimated the degree to which partition sales have been a source of black land loss.” (Thomas W. Mitchell, Destabilizing the Normalization of Rural Black Land Loss (“Destabilizing”), 2005 Wis. L. Rev. 557, 581 (2005); see Faith Rivers, Inequity in Equity (Temp.Po.&Civ.Rts.L.Rev. 2007) 1, 31 (“There is little empirical data documenting claims of African-American land loss” [due to partitions].) (“Inequity”).) Others have claimed that low will-making rates for African-Americans represent a present day manifestation of the ways in which African Americans after the conclusion of the Civil War were deprived of access to attorneys and even to basic information about estate planning, but this theory has not been verified in any meaningful way. (see Law Reform p. 68.)

Instead, the Act requires courts to use a “totality of the circumstances” test that requires them to make findings on a range of economic and non-economic factors. (see Law Reform, p. 74.) Under the multi-factor test, unlike application of the economics-only test, a court cannot decide at the outset to give more weight to any factor whether the factor be economic or non-economic in nature.

The Partition of Real Property Act seeks to address consequences of this type of property ownership, and which California adopted in 2022.

To determine great prejudice according to the statute, the property must be able to be divided in a way not detrimental to the value. The sentimental value of the property is also considered along with its use. However not one singular factor is determinative. This means courts will pick the least prejudicial method of partition. (Formosa Corp. v. Rogers (1951) 108 Cal.App.2d 397, 411.)

For example, “Julie” and “Shawn” want to partition a shared home. The shared family home will likely not be able to be divided physically. The divided house would also lose its value being split in that way. As such, partition in kind is likely to be more prejudicial than a partition by sale where the proceeds would be able to be divided.

Alternatively, where Julie and Shawn wished to partition a multi-unit building, they could more easily physically divide the property without it being devalued or prejudicing the parties. This also applies to property like parcel of land which are less residential.

Here at Underwood Law Firm, our knowledgeable attorneys are here to help navigate the complex web of case law and statutes surrounding partitions. If you are thinking of filing a partition, are already in the midst of a partition suit, or just have any questions, please do not hesitate to reach out to our office.