The City of Montebello translates to “beautiful mountain” in Italian. In its early days, Montebello was an agricultural community, rich in flowers, berries, fruits, and vegetables. In 1917, oil was discovered in the Montebello hills and eventually oil fields replaced agriculture. Today, Montebello is home to over 62,000 residents. As homes in Montebello continue to go up in price, residents may wish to get the best value when they sell. Jointly owned real estate may become a problem if a dispute arises between co-owners.
What Is a Partition Action?A partition lawsuit requires real estate to be sold regardless of the requests of the other title owners. The purpose of a partition action is to permanently end all disputes and remove all obstacles to the free enjoyment of land by one person. (McGillivray v. Evans (1864) 27 Cal.92.) These types of actions can be brought for all types of real estate from houses to farms to office buildings to apartment buildings. Similarly, partition actions are available all types of ownership situations from joint tenants to tenants-in-common to partnership property to property jointly owned by former spouses.
Historically, the term "partition" comes from the basic word to break into "parts" as in physically dividing real estate in half. For example, if two siblings inherited ten acres of farmland, the property could historically be divided into five acres a piece for each of them. As most people now live in single-family homes, which cannot simply be "split in half," courts will instead order that the property be sold and the proceeds, or equity, be "split in half."
What Are the Steps in a Partition Lawsuit?First, a partition action is filed. A partition action can be filed if one co-owner of real property or a piece of real estate wishes to sell the property or piece of real estate in question but the other co-owners or co-tenants do not wish to sell their ownership rights.
Second, the court may appoint a court referee to oversee the sale of the property in question. The sales procedure includes that all parties agree to the terms and conditions of the sale in writing. If the parties can not agree, as partition actions are usually very contested issues, then the referee that the court appointed may recommend terms and conditions to the court. Then the court will hold a hearing to decide whether or not to accept those terms and conditions.
Third, in some states and counties, the property’s value will be appraised via a third party or another property appraisal with no ties to any of the parties. While this is not required in all states, it is recommended to make sure that all parties are on the same metaphorical page as to the potential sale proceeds of the property in question.
Fourth, the referee will conduct the sale in the method most agreeable to all of the party’s goals. This can be via a public auction or a private sale. Regardless of the specific method of partition by sale, the court will determine if the sale was “fair.” If it is decided that the property’s sale proceeds had a lack of proper notice, the sale amount is not within reasonable the value of the property, or if the proceeds were unfair- the court would rule that the property will be up for sale again.
Lastly, the court will order that the proceeds of the sale, minus any court litigated or approved offsets or costs, will be distributed equitably amongst all of the co-owners or people with interest in the property.
What Are the Common Types of Partition Actions?Generally, a partition action is the best remedy for disputing co-owners in four broad categories:
In determining the manner of partition, a trial court may order a partition by sale if it determines that “under the circumstances, sale and division of the proceeds would be more equitable than division of the property.” (CCP § 878.820(b).) Although the law generally favors partition in kind so as to not disturb inheritance or compel a person to sell his or property against his or her will, partition by sale is preferable in modern transactions as physical divisions often do not equal the value of the whole parcel before division. Recently, the California Court of Appeal addressed the court’s determination of the manner of partition in a case decided by the Fourth District Court of Appeal known as Green v. Green-Jordan (2019) 2019 Cal.App.Unpub.LEXIS 5961.
There, a brother and sister acquired title to a piece of real property and a mobile home on the property as joint tenants, and the brother sought to partition the property and mobile home. The brother wanted to sell the home, but the sister did not, arguing that there was enough property to be divided equally. The trial court ruled that the Property should be partitioned by sale as the sister did not offer any evidence supporting a partition in kind. The trial court then entered an interlocutory judgment establishing that the parties owned the property as joint tenants and ordered a partition by sale. The sister appealed.
The Court of Appeal affirmed, finding that “physical division may be impossible due to zoning restrictions or may be highly impracticable.” (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 597.) Because splitting the Property would require compliance with multiple government codes, the process to prepare and file the necessary applications and parcel maps would be an expensive process. This means that “the real property would be substantially less valuable when partitioned in kind than when partitioned by sale — a recognized reason to order partition by sale.” (Formosa Corp. v. Rogers (1951) 108 Cal.App.2d 397.) Further, the state had a $64,000 lien on the Property which would encumber the siblings’ halves of the Property. As such, the Appellate Court determined that the facts demonstrated that a partition in kind would be inequitable. Thus, Green supports the idea that partition by sale is appropriate where a partition in kind would impractical and inequitable.
How Underwood Law Firm Can HelpIn order to start resolving these situations, you should contact an experienced Montebello Partition Lawyer as soon as you are ready to start the next chapter of your life.
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