Northern California Partition Lawyers

Generally, Northern California spans the State’s northernmost 48 counties, and includes the San Francisco, San Jose, Sacramento, Monterey, Modesto, Lake Tahoe, Mount Shasta, and most of the Central Valley. Since the Gold Rush in 1849, Northern California has continued to grow, and the region is now home to 12.6 million people, has a GDP of $1.21 trillion, and accounts for 3.9% of the US population. This region is home to some of the world’s highest ranking universities, including Stanford University, the University of California San Francisco College of Law (formerly known as Hastings Law School), the University of California at Berkeley, the University of California at San Francisco, and the University of California at Davis. There are at least four different instances where a Northern California Partition Lawyer can be helpful:

• Boyfriend-Girlfriend co-ownership of property;
• Sibling-Sibling co-ownership of property;
• Parent-Child co-ownership of property; and
• Investor-Investor 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 Northern California Partition Lawyer will be able to share information on this process with you.

Under the Partition of Real Property Act, the court instead appoints an appraiser to do the heavy lifting. The new statute states that the court “shall determine the fair market value of the property by ordering an appraisal.” (CCP § 874.316.) The court doesn’t have to be the one to order the appraisal, but this is only if all the co-owners agree to a different method of valuation.

If, however, an appraisal occurs, it shall be conducted by a disinterested third-party real estate appraiser licensed to determine the fair market value of properties. After the appraisal is conducted, parties may file objections to the value and can even offer additional evidence of value to the court.

After the valuation is complete, parties will be introduced to the key feature of the new statute: the buy-out option. If a co-owner requests a partition by sale, then the court will notify the other co-owners that they may buy all the interests of the cotenant that requested the partition. (CCP § 874.317.)

This is, essentially, a right of first refusal. The co-owners who don’t want the property sold now have the option to simply buy out the requesting party. Additionally, the buy-out price will be based on the property’s valuation, determined earlier in the litigation. And if one or more parties exercise the buy-out, then the court will reapportion ownership percentages based on the price paid. A top Northern California Partition lawyer will be familiar with the process.

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." A knowledgeable Northern California 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 Northern California Partition Attorney will be intimately familiar with these matters.

In partition actions, the court will determine the manner of partition. Modernly, courts will usually order a partition by sale. Once the manner of partition is determined, the court appoints a partition referee and takes into account the referee’s report. The referee’s fees and expenses are included in the costs of partition, which are divided among the parties in proportion to their interests. The following paragraphs discuss the principles and rules that govern partition actions regarding partition referees in the case, Polk v. Polk (2009) 2009 WL 2614292.

In Polk, Plaintiff John Polk, executor of the Estate of Felix Polk, brought an action in partition against Felix’s wife, Susan Polk, and other family members with interests in the couple’s former family home. Prior to the suit, the couple were in a pending dissolution action and Susan was later charged with Felix’s murder. In an earlier probate action, the probate court ordered the suspension of the trustee’s power to sell the property without further court order until a specified date. After that date, Polk initiated this partition action. Susan participated in the action when she was out on bail and in prison, however, she was denied transportation from prison to the hearings. The trial court appointed a successor referee, and later confirmed the sale.

Susan then made three appeals to: (1) the appointment of the successor referee, (2) the orders confirming the sale, (3) and the orders making other awards. The California First District Court of Appeal first considered the issue of appealability. As to the first appeal regarding the appointment of the successor referee, the Court of Appeal dismissed the purported appeal because it was aware of no authority that the appointment itself was appealable. As to the second and third appeals, the Court of Appeal determined that the orders confirming sales were appealable as “interlocutory judgments determining the rights and interests of the parties and directing partition, or as appealable orders after judgment.” (CCP § 904.1, subds. (a)(9), (a)(2).)

In her first appeal, Susan contended that an order appointing Stephen Anderson as successor referee, and the prior order appointing Bruce Reeves were defective because of a failure to assess the ability of the parties to pay the costs of the referee as required by California Code of Civil Procedure section 639. Section 639 provides that when a court appoints a referee, the resulting written order must include “either a finding that no party has established an economic inability to pay a pro rata share of the referee’s fees or a finding that one or more parties has established an economic inability to pay … and that another party has agreed voluntarily to pay that additional share of the referee’s fees.” (CCP § 639, subd. (d)(6)(A).) It further provides that the court shall not appoint a referee at a cost to the parties if neither of the above findings are made.

The Court of Appeal found that Section 639 did not apply to either of the appointments of Anderson or Reeves because the governing provisions that applied specifically to partition actions were in Code of Civil Procedure section 872.10, which do not require findings of an ability to pay. Instead, the absence of such requirement makes sense in the provisions governing partition actions because a referee’s fees and expenses are included in the costs of partition as the costs are divided “among the parties in proportion to their interests,” unless the court finds a different apportionment equitable. (CCP § 874.010(b).) Hence, the partition statutes demonstrate the expectation that the parties will be able to pay their share of the costs out of their shares of the judgment, making the finding of an ability to pay futile.

In Susan’s other two appeals, she contended that neither John nor the referee responded to her Application for Settlement Conference & Offer to Buy Out and that her application was denied by the court in an ex parte hearing that she was not present or represented in. The Court of Appeal held that the record did not reflect a denial at an ex parte hearing. The Court of Appeal found that her application was denied for a settlement conference, not the prospect of settlement and that nothing indicated at that moment that the parties were ready to conference yet since the trial court had directed the referee to develop the amount necessary to buy out the estate’s interest. Further, Susan’s offer showed a “vast gulf” between her offer amount and the estate’s needs.

Additionally, Susan challenged the costs and fees allocated to her during the court’s apportionment of the costs of partition. The Court of Appeal held that Susan failed to make any effort to detail or dispute the accounting as lacking evidentiary support. Because she failed to present the evidence, she waived the claim. (Crawford v. Southern Pacific Co. (1935) 3 Cal.3d, 427, 429.) Notably, Susan failed to recognize that while she thought of herself as vigilantly defending her rights, the courts could see it differently. The Court of Appeal found that the court could reasonably decide that Susan was being obstructive and shared fault for the extent of the fees and costs while she ceaselessly and without merit, opposed all of John and the referees’ actions.

Susan continued by accusing the referee of fraud and conspiracy, but never amended her pleadings to raise the issues. She also accused the referee of unprofessional conduct that drove down the property’s value right before the sale. However, the Court of Appeal held that Susan failed to show error on the part of the partition court and that it did not need to resolve the issue as a question of professional ethics because the partition court was never called upon to do so.

The Court of Appeal needed to only observe that the court “presumably credited that reasoning in finding, on the full evidence, that the sale had been for a price “not disproportionate to the value of the Property.” Thus, the Court of Appeal affirmed the challenged orders and affirmed that the Plaintiff/Respondent John Polk, was the prevailing party entitled to costs.

As seen above, the costs of partition are apportioned among the parties which includes the referee’s costs and expenses. These costs can be increased based on a party’s actions during the litigation process.

As a party to a potential partition action, it is helpful to be aware of the principles and rules of partition, including those relating to the referee. As such, you may benefit from good legal advice on the topic. If you find yourself contemplating a partition action, or faced with defending one, then please contact Underwood Law Firm, P.C. for an initial consultation.

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