Whittier Partition Lawyers

The land encompassing the City of Whittier was a part of a Spanish land grant given to Manuel Nieto, a Spanish solider who received the grant as a reward for his service in 1784. Residents of the city named the city after a Quaker poet, John Greenleaf Whittier. During that time, the land was used for agriculture, and home to pampas grass, and citrus and walnut trees. Today, Whittier is home to over 87,000 residents with a majority of its housing units being owner-occupied, which suggests that many homes are jointly owned. When it comes to the selling of real estate, residents may face disputes with co-owners. According to Redfin, In June 2023, Whittier home prices were down 7.1% compared to last year, selling for a median price of $755K. On average, homes in Whittier sell after 29 days on the market compared to 30 days last year. There were 49 homes sold in June this year, down from 68 last year. As a town with great historical roots, residents of Whittier often own property with others due to inheritance, which can lead to disputes between co-owners. Frequently, there are at least four common types of partitions actions for which a Whittier Partition Attorney can provide sound counsel:

• Investor-Investor shared ownership of property;
• Boyfriend-Girlfriend share ownership of property;
• Brother-Sister shared ownership of property; and
• Parent-child 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. The best Whittier 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 Whittier Partition lawyer will be familiar with the process.

The Court may award attorneys’ fees in the partition action that are paid by a party to the action for the common benefit of all the co-owners. (CCP § 872.010.) The Supreme Court has spoken on this issue directly, holding that under former section 796, the predecessor to the current partition cost statute, “counsel fees may be allowed ... for services rendered for the common benefit even in contested partition suits.” (Capuccio v. Caire (1932) 215 Cal. 518, 528-529 (Capuccio).)

Moreover, cases interpreting those sections continue to permit the allocation of attorney fees in contested partition actions. (Forrest v. Elam (1979) 88 Cal.App.3d 164, 174.) From these authorities it is evident that the “common benefit” in a partition action is the proper distribution of the “‘respective shares and interests in said property by the ultimate judgment of the court.’ ” (Capuccio, 215 Cal. at p. 528.) This sometimes will require that “ ‘controversies’ ” be “ ‘litigated’ ” to correctly determine those shares and interests but this ultimately can be for the common benefit as well. The fact that a party resists the partition does not change this. (See Randell v. Randell (1935) 4 Cal.2d 575, 582 [“The presence and litigation of controversial issues between all the parties does not preclude the allowance of attorney's fees for services connected with such issues where such services are found to be for the common benefit of the parties.”].) A knowledgeable Whittier Partition Attorney will be able to give you good advice on these issues.

Code of Civil Procedure section 874.140 states that the “court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustments among the parties according to the principles of equity.” 

The court in Hunter v. Schultz (1966) 240 Cal.App.2d 24 stated that the payments for interest, taxes, and insurance made by any co-tenant could be subject to reimbursement. These claims for reimbursement are commonly known as “offsets” in a partition action. 

Further, the court under Milian v. De Leon (1986) 181 Cal.App.3d 1185, announced that a co-tenant who expends money for the preservation of the property, or with the [acceptance] of their co-tenant(s), is entitled to reimbursement for those expenditures before the division of the proceeds among the property owners. 

That is, the general rule is that compensatory adjustments are appropriate for improvements that enhance the value of the property for all owners’ benefit. (see Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036.) An experienced Whittier Partition Attorney will be intimately familiar with these matters.

In general, the partition of concurrent property interests is a matter of right, unless barred by waiver or altered by agreement. (§ 872.210, subd. (b); Harrison v. Domergue (1969) 274 Cal.App.2d 19, 21; 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 72, p. 119.) The right to partition is subject to waiver which may be effected by an implied as well as an express agreement. (Thomas v. Witte, 214 Cal.App.2d 322.)” (Pine v. Tiedt (1965) 232 Cal.App.2d 733, 738.) An implied waiver can be found based on evidence of a writing which requires one party to first offer to sell his interest to the other. (Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, 253.) Shiohama v. Nash (2010) 2010 WL 2108949 discusses how an appellant court may review conflicting evidence of an implied waiver in a partition action.

Plaintiff Chris Shiohama (Shiohama) and defendant Hester Nash (Nash), an unmarried couple, were the sole owners of a limited liability company, Global Domination Industries, LLC (GDI, the company, or the business), through which they operated their home internet business (Subject Property). After their personal and business relationships deteriorated, Shiohama moved out of their home and ceased working for their business. After the parties tried but failed to divide their assets voluntarily, Shiohama filed suit in September 2006 for partition by sale of their home, involuntary dissolution of GDI, accounting, injunctive relief, appointment of a receiver, and damages.

In a March 25 order, the trial court found that that the parties owned their home as tenants in common, and that Shiohama was entitled to exercise his statutory right to partition by sale. The order explained that under the circumstances, sale and division of the proceeds was more equitable than division of the property. The March 25 order appointed a referee to monitor the sale of the Subject Property. All expenses regarding the sale of the Subject Property were to be paid by Plaintiff Shiohama and Defendant Nash equally. The property was to be sold at a private sale and the proceeds were to be divided in accordance with the interlocutory judgment.

The trial court also ordered the involuntary dissolution of GDI, stating that the management of GDI was deadlocked and subject to internal dissension. The trial court found that Nash changed the locks on the Subject Property, changed the company's bank account by opening a new account in her name only, and did not give Shiohama further access to the records of GDI. In light of Shiohama's exclusion from GDI's premises, books, assets, and accounts, the trial court appointed Kevin Singer as receiver and referee to oversee the sales of both the home and business. Nash later purchased Shiohama’s share of GDI for $116,000 through an offer to the referee.

Following the sale of GDI's assets, the court held a trial of the accounting issues on December 4, 2008. According to the December 4 order, the parties' home had not yet been sold. The December 4 order directed the dissolution of GDI, ordered the sale of the home's furnishings, and awarded judgment for Shiohama on the accounting issues in the amount of $103,640 plus attorney fees and costs in an amount to be determined. On April 21, 2009, the trial court increased the amount of Shiohama's judgment to $194,760.50.

In consolidated appeals, defendant Nash sought review of the interim orders concerning the partition by sale of the parties' home, the involuntary dissolution of the parties' limited liability company, the appointment of a receiver, damages, attorney fees, and an accounting.

Regarding the right to partition, Nash contended that the trial court erred in failing to find that Shiohama had waived the right to partition because of evidence presented that showed she had an undisputed right of first refusal. According to Shiohama's declaration, the parties had orally agreed that Nash would buy Shiohama’s portion of the home they owned together, and Nash would buy out his interest in the GDI as well. At trial, Shiohama argued that it would be inequitable to enforce an implied waiver because Nash's right of first refusal was not in writing (citing Civ.Code, § 1624 [statute of frauds] ) and the right had expired because it was not exercised within a reasonable time as Nash did not purchase his interest in the Subject Property or agree to place it on the market for sale within fifteen months.

The Second Court of Appeal reasoned that while Nash presented evidence that her failure to purchase the home was due to Shiohama asking an unfair price, she did not address the conflicting evidence Shiohama presented that convinced the trial court that he was entitled to a partition sale. The Court of Appeal rejected Nash’s contention that Shiohama waived his right to partition. The Court of Appeal asserted that a reviewing court is without power to substitute its deductions for those of the trial court and all conflicts in the evidence must be resolved in favor of the respondent. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60.) Therefore, Nash failed to establish the existence of reversible error.

Nash also contended that the record lacked substantial evidence to support the trial court's finding that the parties were deadlocked as to their management of GDI, which resulted in the appointment of the referee to oversee the sale of GDI. However, the trial court cited credible testimony from Shiohama that Nash took steps to prevent Shiohama from accessing GDI assets. The Court of Appeal rejected Nash’s contention because given the trial court's determination that the testimony was credible, the Court of Appeal was bound by that determination in the absence of a compelling reason to disregard it. Although there was other evidence Nash could have presented to support her argument that there was insufficient evidence that the parties were deadlocked, she failed to include it in her brief or cite to the record. As a result, the Court of Appeal was free to ignore it or refrain from searching the record. For similar reasons, the Court of Appeal rejected Nash’s claims of error in the appointment and sale of GDI that occurred after its dissolution.

The Court of Appeal for the Second District ultimately affirmed the March 25, 2008 and December 4, 2008 orders that mandates the partition.

Although tenants in common have an absolute right to partition, all tenants can agree to waive that right in lieu of another course of action. A defendant who does not want to partition and sell a property may assert that the plaintiff waived his or her right to partition via an implied waiver. Although the right of first refusal can indicate an implied waiver, such evidence is refutable. If you are thinking about pursing a partition action, you may benefit on anticipated defenses the other party may present such as a waiver to a partition. Please contact Underwood Law Firm, P.C. for an initial consultation.

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