Code of Civil Procedure section 872.120 states
In the conduct of the action, the court may hear and determine all motions, reports, and accounts and may make any decrees and orders necessary or incidental to carrying out the purposes of this title and to effectuating its decrees and orders. “Action” means an action for partition under this title.
(Amended by Stats. 1976, c. 73, p. 110, § 6.)
What is an example?
For example, “Mike” and “ Anthony” purchased a two-bedroom single-family home as tenants in common, meaning that they each owned a separate 50 percent interest in the property with the right to sell or transfer their respective shares. Mike and Anthony’s relationship soured due to multiple disputes over how to divide unexpected repair and renovation costs between the two of them. Mike wanted to sell the property because he could not reach a compromise with Anthony, nor could he afford to pay the renovation costs. Mike asked Anthony if they could sell the property on the private market and divide the proceeds according to their interest, with the renovation and repair expenses deducted from the sales proceeds. Anthony refused to sell the property.
Because tenants in common have an absolute right to partition, regardless of the wishes of another co-tenant, Mike sought an interlocutory judgment from the court seeking a partition by sale of the property. (De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 122.) The court agreed and ordered a partition by sale of the property with a court-appointed referee to conduct the sale.
However, Anthony refused to cooperate with the referee and would not vacate the property while Mike had already moved out. Mike filed an application for a writ of possession, which is a means of recovering possession from someone who is wrongfully occupying a property. (CCP § 715.010.) The court granted the request and issued a writ of possession with an order for Anthony to vacate the property so the sale could be completed. The court had the authority to order the writ of possession pursuant to Code of Civil Procedure section 872.120 because it’s an order necessary to carry out the sale of the property, and the court has broad statutory authority regarding partitions.
Law Revision Commission Comments (CCP § 872.120)
1976 Addition
Section 872.120 is new. Generally, its purpose is to give the broadest possible statutory authorization for powers that the court, to a large extent, apparently already had. The succeeding sections of this article elaborate on but do not exhaust, the court’s power in partition actions. While partition actions in California are a creature of statute (Capuccio v. Caire, 207 Cal. 200, 277 P. 475 (1929) ), they are nonetheless equitable in nature (Elbert, Ltd. v. Federated Income Properties, 120 Cal.App.2d 194, 261 P.2d 783 (1953) ), and the statutory provisions are to be liberally construed in aid of the court’s jurisdiction. See Sections 4 and 187.
Assembly Committee Comments
In order to provide a more comprehensive understanding of Assembly Bill 1671, the Judiciary Assembly Committee issued a report clarifying its intent regarding the bill. The legislature’s comments are recorded in the Recommendation of the California Law Revision Commission Relating to Partition of Real and Personal Property (January 1975), 13 Cal. L. Revision Comm’n Reports 401 (1975).
The Commission’s consultant for the partition study was Mr. Garrett Elmore, a practicing attorney who was a partition referee and former counsel for the State Bar Committee on the Administration of Justice. While drawing from the recommendations of the California Law Revision Commission, Assembly Bill 1671 aimed to modernize the law governing the partition of real and personal property.
The existing title of the Code of Civil Procedure containing the partition remedy was enacted in 1872 and remained largely unchanged. The code had become outdated, with obsolete provisions, procedural gaps, and ambiguities. These shortcomings led to the diminishing effectiveness of the partition remedy. To address these issues, Assembly Bill 1671 was introduced to streamline the law, fill in gaps, resolve ambiguities, and modernize the partition remedy.
Overall, the bill reviewed laws from 1872 and enacted new legislation that superseded previous laws or modified laws. Section 872.120 is an example of a provision that was added. Section 872.120, and other provisions, further codified the court’s broad statutory power to hear motions, make orders and decrees and issue temporary restraining orders and injunctions that arise from partition proceedings.
In addition, Assembly Bill 1671 made a multitude of other changes. Assembly Bill 1671 liberalized the instances when a sale of a property is permitted as opposed to a physical division. Under the former law enacted in 1872, the partition of property was typically done through physical division. The physical division was required unless such a division would cause significant prejudice. If prejudice would result, then the property could be sold with the division of the proceeds. While Assembly Bill 1671 does continue the existing preference for physically partitioning a property, it expanded the circumstances where a property sale is allowed. Under Assembly Bill 1671, property can be sold if a sale would be more equitable than a physical division.
Likewise, the bill further expanded existing law to provide detailed procedures for sales and permitted the court to order the manner of sale on terms and conditions consistent with existing law. For example, the former law required three referees to be appointed to divide and sell the property unless both parties consented to a single referee. Under the bill, a single referee is appointed by the court unless the parties consent to three.
Regarding venue for partition actions, Assembly Bill 1671 also changed venue provisions to require that actions for partition of real and personal property be brought in the county where the real property or some part of it is located.
Ultimately, Assembly Bill 1671 was approved by the Senate Judiciary Committee and is still binding legal authority for the partition of real and personal property.
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