Oakland Partition Lawyers

Oakland is the county seat and the largest city of Alameda County. The city is well known for having the state’s busiest port, the Port of Oakland. This major west coast port is an active trade center that ranks as the fifth busiest port in the nation. When there is a disagreement between one or more co-owners of a property, an Oakland Partition Attorney can help. Commonly, disputes arise where one co-owner may want to sell the property, but another co-owner does not agree to sell. In this scenario, a partition action can help force the sale of the property and fairly compensate each co-owner for their shared interest. An Oakland Partition Attorney can ensure that the law is carried out for those ready to take advantage of it.

There are at least four different instances where an Oakland 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 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."

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 a “partition referee” (who is frequently a licensed Realtor) to sell the property. Third, the partition referee markets and sells 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.”

Under the law, a property owner can make a claim for contribution for anything that they have expended for the common benefit of all the parties as it relates to their jointly-owned property. Code of Civil Procedure section 874.410 states that “the court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.” For example, the credits can include expenditure in excess of the co-tenants fractional share for necessary repairs and improvements that enhance the value of the property. (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036.) Similarly, payments for interest, taxes, and insurance made by any co-tenant could be the subject of a reimbursement claim. (Hunterv. Schultz (1966) 240 Cal.App.2d 24.)

A partition action can always be resolved informally at any time prior to the first day of trial. 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.

Generally, a co-owner’s right to seek partition is absolute, absent an express or implied waiver to not partition. When property is owned by joint tenants, each joint tenant has the right to seek an action in partition to sever the joint tenancy. This right may be waived by a prior express or implied agreement.

Typically, when a party seeks an action in partition, the court shall determine whether an agreement waiving the right to partition exists. In simpler cases, a court may find that there was an express waiver, which is an easier waiver to show. However, the finding of an implied waiver may be a bit more complicated.

To determine whether there has been an implied waiver, courts often look to testimony or facts that show the intent when title was acquired. Courts may find that an agreement waiving the right to partition exists if the purpose for which the property was acquired would be defeated by partition.

Additionally, courts will find that an agreement exists if a partition would frustrate the purpose for which the land is now being used. When seeking a partition action, a partition lawyer can be of great assistance in asserting a right to partition or a waiver of the right to partition.

Randa v. Randa, 2018 Cal.App.Unpub LEXIS 7837 explains a court’s reasoning for denying a request for partition when the evidence demonstrates an implied waiver indeed exists. Even though partition is a matter of right, Randa shows how the concept of partition is subject to equitable principles like fairness and may be waived by an express or implied agreement.

In Randa, the son, Gary Randa, and the mother, Catherine Randa acquired title to a house as joint tenants under a grant deed. Gary sought to partition the Property by sale and claimed that Catherine excluded Gary from living on the Property, was receiving rent, and refused to purchase Gary’s interest in the property. Gary sought an accounting and all income and expenses of the Property since he left the Property.

Catherine then filed a cross-complaint requesting an accounting for the money she spent to maintain the Property and to discharge a lien against the Property which incurred after Gary failed to pay child support. Catherine’s sister was also living in the garage on the Property and paying Catherine for taking care of her.

The trial court appointed a referee who found that Catherine was entitled to the $15,000 she spent to release Gary’s child support lien. The referee also found that the “rent” Catherine received was minimal as the money was more so for her sister’s care. (Id. at 6.) Further, the referee found that the parties had in fact entered an agreement that Catherine could live on the Property as long as she wished. Catherine paid and continued to pay the mortgage and other Property-related expenses. As such, the parties conducted themselves in a way that followed the terms of the agreement. (Id. at 6.) Thus, the right to partition was waived. (Id.)

The trial court adopted the referee’s report and denied Gary’s partition action, granted Catherine’s claim for a reimbursement of the $15,000 she spent on the child support lien. (Id. at 7.) Gary appealed. The Court of Appeal affirmed the trial court’s rulings.

Randa’s Holding: Any Unwritten Waiver Is Necessarily by Implication.

Although Gary argued that no evidence showed that he or Catherine waived the right to partition, the Appellate Court looked to the testimony given by both parties and determined that there was indeed an implied waiver.

The Appellate Court found that while Code of Civil Procedure section 872.210 permits a co-owner of real or personal property to bring an action for partition, a partition sale is not permitted “in the absence of sufficient proof of the equities of such a method of partition.” (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365.) “Although partition is a matter of right when a cotenant desires it, it is subject to the requirement of fairness and the right may be waived by contract, either expressly or by implication.” (Penasquitos, Inc. v. Holladay (1972) 27 Cal.App.3d 356, 358.)

Here, both Gary and Catherine testified that when they purchased the house, they both agreed that while Gary would provide funds for the down payment, Catherine would stay in the house and pay the Property expenses so that she would not have to move. (Id. at 9.) In prior decisions, the courts have found that “an oral understanding that one joint tenant was to continue to live on the property as his home has been held to defeat a right to partition the property.” (Lehmann v. Kamp (1969) 273 Cal.App.2d 701, 706, fn. 5.) Because Gary and Catherine understood that Catherine was to continue to live on the Property as her home, the Appellate Court determined that this oral understanding constituted an implied agreement. Thus, the parties’ agreement constituted an implied waiver of the right to partition.

Further, although Gary argued that he should not have to reimburse Catherine for the $15,000 she paid to settle the child support judgment as he did not preapprove the payment, the Appellate Court determined that the evidence showed that Catherine paid the money with the understanding that Gary would make an additional $10,000 payment. Randa teaches not only the effect of an implied waiver in a partition action, but also the importance of evidence when it comes to partition actions.

Getting a judgment of partition is often only the first step in partition litigation. Perhaps unsurprisingly, getting the property sold can take even longer than litigating the right to partition itself. The nature of the lawsuit becomes that of an accounting, as parties attempt to find common ground on the methods and costs of the partition itself.

As each case is unique, property owners would be well-served to seek experienced counsel familiar with the intricacies of partition actions and the sales procedures that follow. At Underwood Law, our knowledgeable attorneys are here to help. If you are trying to decide on the methods for a partition sale, attempting to fight another party’s motion to confirm or vacate a sale, or if you just have questions, please do not hesitate to contact our office.

The Underwood Law Firm serves every neighborhood in Oakland, including Acorn, Adams Point, Allendale, Arroy Viejo, Bartlett, Bella Vista, Beulah Heights, Broadway, Brookfield Village, Bushrod, Caballo Hills, Castlemont, Chabot Park, Chinatown, Civic Center, Claremont Hills, Clawson, Cleveland Heights, Clinton, Coliseum, Columbia Gardens, Cox, Cresmont, Crocker Highlands, Dimond District, Dogtown, Downtown Oakland, Durant Manor, Eastmont, East Peralta, Edgewater, Elmhurst, Embarcadero, Fairfax, Fairview Park, Fitchburg, Foothill Square, Forestland, Femont, Frick, Fruitvale Station, Gaskill, Ghosttown, Glen Echo, Glen Highlands, Glenview Golden Gate, Grand Lake, Grass Valley, Haddon Hill, Harrington, Havenscourt, Hawthorne, Hegenberger, Highland, Highland Park, Highland Terrace, Hiller Highlands, Holy Names, Hoover-Foster, Iveywood, Ivy Hill, Jack London Square, JAMMI, Jefferson, Jingletown, Joaquin Miller Park, Koreatown, Lakeshore, Lakeside, Laney College, Las Palmas, Lincoln Highlands, Lockwood-Tevis, Longfellow, Lower Bottoms, Lower Diamond, Lower Laurel, Lower Rockridge, Lynn, Maxwell Park, McClymonds, Meadow Brook, Melrose, Melrose Heights, Merriewood, Merritt, Mills College, Millsmont, Montclair, Mosswood, Mountain View Cemetery, Neighborhood Groups, NOBE, Northgate, North Oakland, North Stonehurst, Oak Center, Oak Knoll, Oakland Ave, Oakmore Highlands, Oak Tree, Old Oakland, Panoramic Hill, Paradise Park, Parkridge Estates, Patten, Peralta Hacienda, Piedmont Ave., Piedmont Pines, Pill Hill, and more!

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