El Cajon Partition Lawyer

The City of El Cajon was named after its boxed in nature of the valley and translates to "the box" in Spanish. The city was incorporated on November 12, 1912. In the early 1920s, El Cajon was known for its agriculture, which included grape, tomato, and citrus plants. Today the city boasts a vibrant community, with safe neighborhoods and many amenities. which can lead to disputes with co-owners. According to Redfin, In June 2023, El Cajon home prices were down 7.3% compared to last year, selling for a median price of $710K. On average, homes in El Cajon sell after 10 days on the market compared to 15 days last year. There were 57 homes sold in June this year, down from 89 last year. As a town with over 105,000 residents, residents of El Cajon often own homes with others. There are at least four types of situations where a El Cajon Partition Attorney may be helpful:

• Investor-Developer co-ownership of property; 
• Ex Romantic Partner co-ownership of property; 
• Shared Family co-ownership of property; and
• Parent-Child co-ownership of property;

A partition action is a judicially-supervised forced sale of real estate. In California, each co-owner has an “absolute” right to partition the property. “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the co-tenants will be promoted by refusing the application nor temporarily postponing the action.” (Priddel v. Shankie (1945) 69 Cal.App.2d 319, 325 (emphasis added).) Thus, any owner of real estate (whether 5%, 50%, or 95%) has the right to bring a partition action in California.

Basically, any person who is an owner of real estate can bring a partition action in California. Code of Civil Procedure section 872.710, subdivision (a), states "A partition action may be commenced and maintained by any…owner of…such property." California Civil Code section 872.210 provides a property owner with the "absolute right to partition" absent a valid waiver. Thus, a partition action can be brought by anyone who no longer wants to own jointly owned real estate, other than spousal property. The best El Cajon Partition Lawyer will be able to share information on this process with you.

Broadly, a partition action has only relatively simple steps. First, a party files a lawsuit to establish their rights to the property and desire to sell the property. Second, the court determines that the property should be sold, and appoints an appraiser to appraise the property and offer the other owner the opportunity to buy out the interest. Third, if the other fails to do so, then the Court appoints a “partition referee” (who is frequently a licensed Realtor) to sell the property, and they market and sell the property and deposits the proceeds into a trust account. Fourth, the court determines how much each party should receive from the proceeds, which should include addressing offsets and claims for contribution in an “accounting.” A top El Cajon Partition lawyer will be familiar with the process.

A partition action can always be resolved informally at any time prior to the first day of trial, or entry of judgment. In fact, in numerous instances, just filing the partition itself leads the other party to seek a resolution between them. We always encourage the parties to talk throughout every phase of the process, as that can lead to the best outcomes for everyone.

From our perspective, every piece of litigation is just part of a larger “negotiation.” In any negotiation, the party who has the best leverage is usually able to achieve a more favorable outcome. The lawsuit provides the client with more leverage because they have more options available to them than without the prospect of a resolution from a judge. As such, all that a lawsuit does is provide one party with more leverage in the negotiation about how to resolve the dispute. For this reason, the best way to informally resolve a dispute is to combine discussions with active litigation, so that the matter can be quickly resolved without unnecessary expense. Throughout the process, our attorneys are in touch with our clients about their options and the prospects for informal resolution through mediation or negotiation. A knowledgeable El Cajon Partition Attorney will be able to give you good advice on these issues.

Before the sales proceeds are distributed among the parties, a court-ordered accounting will determine the charges and credits upon each co-owner’s interest. These credits are taken out of the net proceeds before the balance is divided equally. (Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal.App.2d 539 (“Nelson”).) 

“When a cotenant makes advances from his own pocket to preserve the common estate, his investment in the property increases by the entire amount advanced. Upon sale of the estate, he is entitled to his reimbursement before the balance is equally divided.” (Nelson, 230 Cal.App.2d, at p. 541, citing William v. Koyer (1914) 168 Cal.369.)

As such, a party to a partition action must produce and gather their evidence and make sure that it is presented to the court so they can receive full credit for the value that they have added to the property. While a party may have a right to these credits under the law, ultimately, they will not be counted unless they can be presented in the proper form. An experienced El Cajon Partition Attorney will be intimately familiar with these matters.

In litigation, credibility of the parties is key at trial. This applies not just to parties who may testify on their own behalf, but also to parties who present legal arguments. Parties who put forth arguments with strong legal and evidentiary support will be more credible before the court than parties who flail about in their arguments.

Of course, parties who testify on their own behalf must also consider how their actions outside of court affect their credibility in the eyes of the court. The biggest concern for parties would be dishonest actions related to the lawsuit, whether those actions occurred before or during litigation. Such dishonest actions can destroy a party’s credibility completely.

The properties at issue in Gong v. Gong (2010) Cal.App.Unpub. WL 2284036 were three properties owned by the brothers Jeff and David Gong. (Id., at 1.) The brothers owned RFG Oil, Inc., a lubing company with franchises all over southern California. (Id.) David had a 51 percent ownership interest in RFG while Jeff had 49 percent. (Id.) The three properties the brothers owned that eventually became the subject of dispute were leased to RFG. (Id.)

Jeff and David’s property rights were governed by their tenants in common (TIC) agreement. (Id.) The TIC agreement stated that they each owned 50 percent in the properties, and they would share all profits and losses of the properties based on their ownership interests. (Id.)

The TIC agreement also contained a provision with a buy-out procedure. (Id.) The provision stated that if one party wanted to sell his interest, he had to notify the other party which would trigger a 30-day period where the other party can buy out the selling party’s interest. (Id.) If the non-selling party does not buy the selling party’s interest within the 30-day period, then the selling party can sell his interest to a third party within 12 months. (Id.)

If the selling party could not sell his interest within the 12-month period despite good faith and diligent efforts to sell the interest at a reasonable price and with reasonable conditions, then the selling party can demand a sale of the properties. (Id.) The non-selling party has another 30 days to purchase the selling party’s interest. (Id.) If the non-selling party does not purchase the selling party’s interest within those 30 days, then the selling party can compel the non-selling party to cooperate in the properties’ sale. (Id.)

These provisions in the TIC agreement are also explicitly written to be a substitute and waiver for the parties’ right to seek partition. (Id., at 2.)

In July 2007, Jeff sued David, seeking specific performance requiring David to comply with the TIC agreement’s buy-out provisions. (Id.) Jeff also alternatively sought partition in the case that the TIC agreement could not be specifically enforced. (Id.)

In November 2007, Jeff sent David a letter demonstrating his intent to sell the properties. (Id.) The letter stated that Jeff had tried and failed to sell the properties within the one-year period, and Jeff was waiving his right to sell his interest in the properties. (Id.) David did not respond to this letter. (Id.)

In February 2008, Jeff wrote another letter to David, referencing Jeff’s previous letter. (Id.) The letter stated that Jeff wanted to sell the properties in their entirety. (Id.) David did not respond to this letter either. (Id.)

Trial began in June 2008. Jeff argued that he was not required to make good faith and diligent efforts to sell the properties during the 12-month period because that clause was voluntary. (Id.) David argued that specific performance was not an available remedy, specific performance was premature, and Jeff waived the right to seek partition in the TIC agreement. (Id.)

In August 2008, the trial court found that Jeff failed to prove he was entitled to specific performance. (Id., at 3.) The trial court also concluded that Jeff had an obligation to use due diligence to find a third-party buyer, but he had failed to do so. (Id.) Furthermore, the trial court held that Jeff was not a credible witness as he signed false tax returns. (Id.)

Additionally, the trial court held that the parties waived the right to partition according to the TIC agreement. (Id.) Jeff appealed, and the Court of Appeal upheld the trial court’s judgment. (Id., at 1.)

Jeff first argued that the court erred in finding the buy-out provisions not enforceable while also finding the partition waiver provision enforceable. (Id., at 4.) Jeff claimed that this made the TIC agreement an illusory contract. (Id.) This was, however, a misstatement of the trial court’s findings. (Id.) The trial court actually concluded that Jeff did not comply with the TIC agreement’s buy-out provisions because Jeff did not diligently seek to sell his interest during the 12-month period. (Id.)

The question was not about the enforceability of the TIC agreement, but about whether Jeff was entitled to specific performance. (Id.) Parties seeking specific performance must satisfy several elements, one of which is that the party has performed or is excused from performance. (Id., at 5.) The trial court concluded that since Jeff did not satisfy this element he was not entitled to specific performance, and the Court of Appeal agreed. (Id.)

Jeff argued that the provision for diligent efforts was voluntary, and he could waive it because the provision was solely for his benefit. (Id.) The Court of Appeal held that Jeff’s argument was directly contrary to the plain language of the TIC agreement. (Id.)

Jeff then argued the trial court erred in holding that specific performance was not available because the trial court considered a sales procedure that was not generally used to enforce specific performance. (Id.) The Court of Appeal concluded the sales procedure was not necessary in the trial court’s decision, and so there was no need to determine if the sales procedure would be used to enforce specific performance. (Id., at 6.)

Next, Jeff argued he was not required to make diligent efforts in finding a third-party buyer during the 12-month period as a prerequisite for demanding a sale. (Id.) Jeff claimed that David’s answer to the complaint repudiated the TIC agreement, which excused Jeff from the diligent efforts requirement. (Id.)

Jeff contended that David repudiated the TIC agreement by denying its existence and that it governed the parties’ rights regarding the properties. (Id.) Nothing in David’s answer, however, matched this claim. (Id.) At most, David stated that he had insufficient information to admit or deny some of Jeff’s allegations. (Id.)

At trial, David did not claim that the TIC agreement was invalid, and Jeff did not argue that David repudiated the TIC agreement. (Id., at 7.) The parties had even stipulated that the TIC agreement was enforceable. (Id.) The Court of Appeal rejected Jeff’s arguments regarding the diligent efforts requirement and David’s supposed repudiation. (Id.)

Jeff finally argued the trial court erred in finding that he waived his right to partition because this made the TIC agreement an illusory contract. (Id.) The Court of Appeal held this argument to merely be a repeat of Jeff’s first contention, which the Court of Appeal had already rejected. (Id., at 8.) The Court of Appeal also ruled that the partition waiver in the TIC agreement was valid and enforceable. (Id.) The Court of Appeal fully upheld the trial court’s judgment. (Id.)

Gong demonstrates how parties must always be as credible as possible. This includes providing proper legal and evidentiary support. It also includes testifying truthfully and in good faith before the court. Dishonest actions before and leading up to the lawsuit can also negatively affect one’s credibility. Such loss of credibility can be fatal to one’s case.

As seen in Gong, credibility is vital in litigation. This is not just about court testimony, but credibility also extends to the level of support the parties provide for their arguments, whether that support is legal or evidentiary. At the end of the day, the side that wins in litigation is usually the side that is most credible.

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 trying to plan a partition order, or just have any questions, please do not hesitate to reach out to our office.

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