Fresno Partition Lawyer

Fresno is the county seat of Fresno County, located in the San Joaquin Valley, the fifth most populous city in California and the 34^th most populous city in the country, and at the heart of California’s most productive agricultural region. Fresno is no different from other cities in California when disputes arise between tenants in common or joint tenants of property. Two or more people who own assets together can be at a disadvantage when their relationship becomes unstable. This is because each co-owner has an undivided interest in said property. A Fresno Partition Lawyer, however, can be extremely helpful in commencing a partition action in such situations.

In an action for partition, a court will order the joint property to be divided among the parties per their interests within the said property as stated by the California Code of Civil Procedure section 872.810. Fresno Partition Lawyers often find co-ownership issues usually fall under four broad categories:

• Investor-Investor shared ownership of property;
• Brother-Sister shared ownership of property;
• Parent-child shared ownership of property; and
• Partners shared 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.

Generally, the first step in the partition lawsuit process is not a lawsuit, but an earnest attempt to resolve the matter informally, such as through a partition agreement. Only when it is clear that litigation is the only option, is it clear that a partition lawsuit is appropriate.

When it is clear that a partition lawsuit is necessary, then the process begins with the filing of a complaint in the county where the property is located. There are several technical requirements for the partition complaint, and many important steps that must be taken during the lawsuit to ensure that the process is managed effectively.

In a partition lawsuit, there are generally four different steps. First, the court determines each party's ownership interests. Second, the court will decide on the manner of sale. Third, the court will order the property be sold. Fourth, the proceeds from the sale will be divided between the parties based on their relative contributions to the property.

While some may believe that inherited property cannot be partitioned, this is incorrect. Instead, when the property is owned as the result of an inheritance, there may be an additional step for an appraisal, and a right of first refusal, as provided by the Uniform Partition of Heirs Act. Under this act, where a co-tenant requests partition by sale, the law gives the non-partition owner the option to buy all of the interests of the co-tenants who requested the sale.

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.

Generally, anyone considering filing a lawsuit should consider all of their alternatives, including an informal resolution of the problem. This can take the form of a discussion with the other owner or owners about agreeing to sell the property, negotiating with the co-owner to create a formula to divide the proceeds from the sale, or retaining a lawyer to engage in a mediation with the other owners.

Throughout the partition process, and even on the day of trial, any of the owners can make an agreement about the sale of the property. This can happen through a phone call, through negotiations between the parties' lawyers, or through a mediation session with a retired judge or trained mediator. There are many benefits from a mediation session, including confidentiality provisions contained in the law in Evidence Code sections 1115 through 1129.

Specifically, Evidence Code section 1119, subdivision (a), provides "no evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."

Normally, partitions are actions brought by co-owners of real property. In fact, the partition statute explicitly states that co-owners are always entitled to partition their land as a matter of right. (CCP § 872.710.)

What the statute does not address, however, are whether trustees may bring these actions. Trustees are those individuals who manage a trust and ensure it’s being carried out according to the trustor’s wishes. Those wishes are typically codified into a writing called a trust agreement that all parties to the trust must abide by.

But just because one is a trustee does not mean they are entitled to the same rights as regular co-owners. As the foregoing case demonstrates, however, this does not mean that they cannot partition property, provided certain circumstances are in place.

The facts of this case are somewhat jumbled, given that it was decided before 1950 and the record was heavily disputed by the parties. It appears, however, that at some point in 1936, a woman named Vanessa O’Bryant and her husband moved from Texas to California with Vanessa’s brother, Gordon Bosserman. (O’Bryant v. Bosserman (1949) 94 Cal.App.2d 353, 353.)

A few years later, the trio decided to buy a piece of land so that they could build a house to live on. (Id.) Bosserman later claimed that he paid for the entire property, but it is undisputed that the deed of trust procured to purchase the real estate had all three parties’ names on it. (Id. at 354.) In 1942, shortly after Pearl Harbor, Bosserman entered the Army to fight in WWII. (Id.)

Before he left, he granted Vanessa his power of attorney. Bosserman returned 3 years later, and Vanessa, with Bosserman’s power of attorney, executed a deed to herself as trustee of the property. (Id.) On account of this, and other difficulties between the parties, Vanessa filed a partition action. (Id.)

After a bench trial, the court granted Vanessa an interlocutory judgment of partition that effectively split ownership of the property in half – Bosserman owned roughly 50%, while Vanessa and her husband owned the remaining portion. (Id.) Bosserman appealed the order, claiming primarily that Vanessa could not have instituted the partition in the first place on account of her status as trustee of the property. (Id.)

California’s partition statutes have gone through numerous iterations, the most recent of which went into effect this year (CCP §§ 874.311 et seq.) But under all versions of the statute, there have always been enumerated groups of individuals entitled to file a partition claim.

Operating under the statute’s first iteration, the Court noted that trustees were “not one of the persons enumerated in Section 752 of the California Code of Civil Procedure who could maintain an action for partition.” (Id. at 355.) In so stating, the Court also pointed to the well-established principle that partitions are not meant “to put an end to an express trust or defeat its lawful purpose.” (Varni v. DeVoto (1909) 10 Cal.App. 304.)

This principle is somewhat self-explanatory. Under the current law, partition is a matter of right for co-owners of real property. (CCP § 872.710.) But despite this right, partition cannot be used as a means of usurping separate contracts willingly entered into by the parties. (Pine v. Tiedt (1965) 232 Cal.App.2d 733, 739.) For instance, many express trust agreements have portions that explicitly state the property will not be partitioned. It would be therefore unjust to allow parties to escape these clauses merely by filing a partition action.

With all that said, no such restriction existed here. What’s more is that Vanessa did not sue in her capacity as a trustee. Instead, the action was brought by Mr. and Mrs. O’Bryant “suing in their individual right as owners of an interest in the property sought to be partitioned.” (O’Bryant 94 Cal.App.2d at 356.) As such, the court held that the judgment of the lower court was not in error, as the record demonstrated that the O’Bryant’s held an actual, equitable interest in the property itself, especially because they had contributed sums of money to the property as a whole. (Id.)

Another key issue in Bosserman was the record. Bosserman argued that the O’Bryant’s held no interest in the property whatsoever. The court actually acknowledged that the evidence was in conflict. (Id.)

Nonetheless, the Court affirmed the lower court judgment on a second prong, stating: “A great deal of time was taken, without objection, in getting at the facts as to the contributions of the respective parties… the Court appeared to have reached the conclusion that, with conflicting testimony at many points, and endless detail involved, that the Court had as clear an idea . . . as a referee would probably be able to arrive at after an extensive and expensive investigation.” (Id.)

While the case has not been extensively cited, it is nonetheless relevant to a number of key legal issues regarding partitions in general.

In Richmod v. Dofflemeyer (1980) 105 Cal.App.3d 745, a seminal partition case, the Court noted that O’Bryant stood for the principle that partition referees are not always necessary, especially in those instances where, “the court had heard all of the evidence and [determined that] the appointment of a referee was unnecessary.” (Id. at 756.)

Secondly, the case also demonstrates that it is indeed possible for trustees to bring partition actions in certain situations. As stated, under the predecessor partition statutes, a trustee could file a partition suit, but only if they were also a co-owner of the property. (O’Bryant 94 Cal.App.2d at 355.) While this is still the case, the partition statutes have been broadened to give the court fairly broad discretion in the case of successive estates. (CCP § 872.710 (c).)

Thus, a beneficiary or trustee could both theoretically file a partition action but would nonetheless need to demonstrate that it was in the best interest of all the parties.

Partitions are fairly common in California, particularly among unmarried couples and business partners. But the existence of a trust associated with the property can cause additional headaches to first-time litigants. Partitions are already emotional procedures, and the time, money, and legalese associated with getting them started can be a significant barrier to exercising one’s property rights.

As each case is unique, property owners would be well-served to seek experienced counsel familiar with the ins and outs of partitions and co-ownership. At Underwood Law, our knowledgeable attorneys are here to help. If you are concerned about facing a partition action, if you’re interested in seeking one yourself, or if you just have questions, please do not hesitate to contact our office.

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