California Partition Law Blog
California Code of Civil Procedure section 872.210 defines the persons who are authorized to commence an action of partition. The section broadens the people who may attempt to bring a partition, while retaining a limitation on property held in community or quasi-community interest.
Code of Civil Procedure section 872.210 states
- A partition action may be commenced and maintained by any of the following persons:
(1) A co-owner of personal property.
(2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.
(b) Notwithstanding subdivision (a), an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.
(Added by Stats.1976. c. 73, p. 110, § 6)
What is an example?
For example, “Brittany” and her sister “Gianna” inherited several parcels of land from their parents. Each sister received an undivided equal interest in the property. A few years had passed, and the land remained undeveloped. Brittany began experiencing financial issues and wanted to sell the property. Gianna refused to sell the property so Brittany sought a partition action. Since Brittany was an owner of the estate through inheritance concurrently with her sister, a lawyer was able to commence a partition action under Code of Civil Procedure § 872.210.
After a trial, the court entered an interlocutory judgment and ordered a partition of the property by sale. Brittany was able to get the house sold so she could work her way back to financial stability. A partition lawyer got it done.
Law Revision Commission Comments (CCP § 872.210)
1976 Addition
Section 872.210 supersedes former Sections 752 and 752a.
Subdivision (a)(1) continues the first portion of former Section 752a relating to personal property. Under former law, successive estates in personal property were apparently subject to partition. See former Section 752a (law governing partition of realty applies to partition of personalty) and 4 L. Simes & A. Smith, The Law of Future Interests § 1777, at 108 n. 28 (2d ed. 1956). Subdivision (a)(1) continues the right to partition successive estates in personal property. See also Sections 872.020 (partition of personalty governed by provisions of partition statute) and 872.710(c) (right to partition successive estates in property). As to personal property held on an express trust, see Section 872.840.
Subdivision (a)(2) supersedes the first portion of former Section 752 relating to real property. The former provision, while covering many of the usual cases, was unduly restrictive. Under subdivision (a)(2), where property is owned by several persons, whether or not they are joint tenants or tenants in common, partition is available to sever their interests. Thus, subdivision (a)(2) permits partition of partnership property. It should be noted, however, that partition of partnership property is subject to the limitations of Section 872.730. Likewise, under subdivision (a)(2), where property is owned in successive estates, partition is available. Former law limited partition of such estates to actions by a life tenant against the remainderman. See Akagi v. Ishioka, 47 Cal.App.3d 426, 120 Cal.Rptr. 807 (1975). Subdivision (a)(2) removes any such limitations. It should be noted, however, that, unlike partition of concurrent interests which may be partitioned as of right (subject to the doctrine of waiver), partition of successive estates is permitted only if it is in the best interests of all the parties. See Section 872.710(c).
Subdivision (b) codifies the rule that community property is not subject to partition. See Jacquemart v. Jacquemart, 142 Cal.App.2d 794, 299 P.2d 281 (1956). Community, quasi-community, and quasi-marital property are subject to division under The Family Law Act. See Civil Code §§ 4452 (quasi-marital property) and 4800 (community and quasi-community property). It should be noted that subdivision (b) precludes only severance of the community interests of spouses; it does not preclude partition of other estates or interests in the property that may exist concurrently or successively with the community interests. Subdivision (b) promotes a policy to make the family law court the sole forum for resolution of disputes relating to marital property. One consequence of this policy is that community interests in property cannot be severed absent a dissolution proceeding or a proceeding for legal separation (which under Civil Code Section 4508 requires consent of both parties). Whether community interests in property should be severable during marriage without consent of both parties is an issue the California Law Revision Commission has not addressed; the Commission believes that this issue is more appropriately resolved within the context of The Family Law Act.
The provision formerly found in Section 752 for partition by a lienholder “on a parity with that on which the owner’s title is based” is not continued by Section 872.210. The provision was special legislation of extremely limited application. See, e.g., Elbert, Ltd. v. Nolan, 32 Cal.2d 610, 197 P.2d 537 (1948); Elbert, Ltd. v. Clare, 40 Cal.2d 498, 254 P.2d 20 (1953). Moreover, it was an exception to the rule that only the holder of a substantial property interest is entitled to demand partition. In some cases, foreclosure of the lien will result in a tenancy in common relationship. See Elbert, Ltd. v. Nolan, supra. This act provides a one-year grace period for persons affected by the repeal of this provision.
Assembly Committee Comments
Section 872.210 was added by Assembly Bill 1671 in 1976. The bill was meant to reorganize, revise, and modernize century-old statutes on partitioning real and personal property. The bill revitalized partition law and included provisions such as: extending the type of property ownerships that were partitionable to include successive estates of inheritance for life, or for years, where partition is in the best interests of the parties and expanding existing law to provide detailed procedure for sales.
The bill was sponsored by the Law Revision Commission. The Commission’s consultant for the partition study was Mr. Garrett Elmore, a practicing attorney who had experience as a partition referee and who, for many years, was counsel to the State Bar Committee on the Administration of Justice. In its comments, the committee emphasized that the statutes for partition had been unchanged since 1872, and therefore needed some serious revisions. In their previous state, the statutes contained a great deal of obsolete material, and there were gaps and ambiguities in the procedural detail of the existing law. These defects contributed to the decline of partition as a useful remedy.
The existing law was unduly lengthy or dealt with several subjects. Their order was often haphazard. There were a few duplicate matters that were handled more adequately by general provisions of law governing civil actions. Nearly all of it contained archaic or obscure language.
Therefore, Assembly Bill 1671 was introduced. Amongst several other things, the bill expanded partitions in personal and real property, while codifying the idea that community property is not subject to partition. Once the bill was adopted, it would implement statutes such as what is now known as California Code of Civil Procedure § 872.210.