California Partition Law Blog
California Code of Civil Procedure section 872.020 is under Title 10.5 Partition of Real and Personal Property. This statute details the scope, or in other words, the actions of partition that the title controls. The statute aims to clarify the property to which Partition Law actions may apply.
Code of Civil Procedure section 872.020 states
This title governs actions for partition of real property and, except to the extent not applicable, actions for partition of personal property.
(Amended by Stats. 2021, Ch. 119, Sec. 1. (AB 633) Effective January 1, 2022; Stats.2022, c. 82 (A.B.2245), § 1, eff. Jan. 1, 2023.)
What is an example?
For example, “Cristy” and her brother “Robert” each inherited an undivided equal interest in their parent’s home where they had grown up in. The pair had agreed to split maintenance and repairs on the home. However, Cristy had paid for the improvements by herself, and Robert had not contributed anything to the home’s repairs. Robert did not live in the home, and Cristy lived in the home with her fiancé. Cristy wants to sell the house so she can buy a new home with her fiancé once they get married. Robert, however, was mad at Cristy because he thought that she did not see the value in preserving their family home for their future children and so refused to agree to sell the house.
Because they both did not agree to sell, a realtor could not help Cristy, and her brother refused to discuss the matter further. Cristy felt trapped as she wanted to start a new life with her husband without the obligation of the home that her brother was not helping her with. Cristy then, however, found a partition lawyer who was able to file a “partition action” within the meaning of Code of Civil Procedure section 872.020, as the home was real property within the scope of the partition statute. Cristy was able to get the house sold so she could have a new beginning with her soon-to-be husband. A partition lawyer got the job done.
Law Revision Commission Comments (CCP § 872.020)
1976 Addition
Section 872.020 is derived from the second sentence of former Section 752a. Owners of both real and personal property may maintain a partition action. See Section 872.210. This title does not apply to property divisions under the Family Law Act or in other types of cases specifically governed by other statutes.
It should be noted that there may be provisions of this title which, although phrased in general terms, are not applicable to personal property.
2021 Amendment
SECTION 1. Section 872.020 of the Code of Civil Procedure is amended to read:
872.020. (a) This title governs actions for partition of real property and, except to the extent not applicable, actions for partition of personal property.
(b) Chapter 10 (commencing with Section 874.311) shall apply to actions filed on or after January 1, 2022, for partition of real property that is heirs’ property, as defined in Section 874.312.
2022 Amendment
SECTION 1. Section 872.020 of the Code of Civil Procedure is amended to read:
872.020. * * * This title governs actions for partition of real property and, except to the extent not applicable, actions for partition of personal property.
Assembly Committee Comments
In order to indicate more fully its intent with respect to Assembly Bill 2245, the Assembly Committee on Judiciary made a committee analysis. This bill amended the statute again after it was amended in 2021. In this report, the committee reflects on why the statute was amended again a year later.
Assembly Bill 2245 was a comprehensive revision of the law relating to partition of real and personal property. The bill was sponsored by the California Association of Realtors and aimed to alter the statutory procedures that governed a partition of real property in cases where the governed where there was no preexisting agreement determining the question.
The 2021 version of 872.020 contained a subsection that stated, “Chapter 10 shall apply to actions filed on or after January 1, 2022, for partition of real property that is heirs property, as defined in Section 874.312.” The language “heirs property” created an issue because it extended only to partition actions involving heirs’ property. This limit caused the Committee to question: Should statutory procedures enacted last year to protect people who inherit real property held in tenancy in common be extended to all partition actions involving real property held in tenancy in common?
Assembly Bill 2245 enacted the Partition of Real Property Act to govern the partition of real property held in tenancy in common in situations where there was no agreement in a record that governs the partition of the property and which binds all the cotenants. The bill established the Act by amending provisions enacted under the Uniform Partition of Heirs Property Act (UPHPA), which was in AB 633, by removing references to “heirs property” and related terminology in the UPHPA so that these provisions become applicable to real property generally.
The removal of the “heirs property” language resulted in the amendment of 872.020 to what it is today. After removing the language, Assembly Bill 2245 established separate special procedures under the UPHPA governing actions for partition of “heirs property,” i.e., real property acquired from a relative that is held in tenancy in common with a designated percentage of cotenants who are relatives or inherited their property from relatives. (Code of Civil Procedure Sections 874.311-874.322.) This separation expanded partition actions while still addressing the procedures needed in situations of inherited property.
For these reasons, the committee found that AB 2245 created numerous protections for cotenants and arguably did not require that a party be represented by an attorney, contrary to the previous version, which was more or less a traditional civil action. The committee hoped that the procedures set forth in this bill would more readily help individuals preserve the wealth they inherit in the form of equity in real property, which had been limited in the previous version.
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