Code of Civil Procedure section 872.250 states:
(a) Immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.
(b) If, thereafter, partition of other real property is sought in the same action, the plaintiff or other person seeking such relief shall immediately record a supplemental notice.
(c) If the notice is not recorded, the court, upon its own motion or upon the motion of any party at any time, shall order the plaintiff or person seeking partition of the property, or another party on behalf of the plaintiff or other person, to record the notice and shall stay the action until the notice is recorded. The expense of recordation shall be allowed to the party incurring it.
(d) From the time of filing the notice for record, all persons shall be deemed to have notice of the pendency of the action as to the property described in the notice.
(Amended by Stats. 1976, c. 73, p. 110, § 6.)
What is an example?
“Shawn” and “Julie” are an unmarried couple who bought a house in Los Angeles together as joint tenants. Shawn and Julie each have a fifty percent ownership interest in the property.
Eventually, the couple’s relationship deteriorates. Shawn decides to file a partition action. After filing his complaint, Shawn files a lis pendens with the Los Angeles County recorder. The lis pendens gives notice of the partition lawsuit on Shawn and Julie’s home to everyone.
Shawn tries to get a loan on the house, but the creditor sees the lis pendens and refuses to give Shawn a loan. Since the lis pendens indicates that the house’s title is in doubt, many entities will decline to do any transactions involving the house.
The trial court issues an order for a partition by sale. Shawn motions to expunge the lis pendens so that he can sell the property in accordance with the court’s judgment, which is granted.
If Julie appeals the trial court’s judgment however, then the lis pendens is still active. Shawn may still try to sell the house, but buyers are unlikely to buy property with a lis pendens. This is because if Shawn loses the appeal, then the sale would become void.
Law Revision Commission Comments (CCP § 872.250)
1976 Addition
Subdivisions (a) and (d) of Section 872.250 continue provisions formerly found in Section 755. The detailed listing of the contents of the lis pendens formerly found in Section 755 is omitted since Section 409 covers this matter. The requirement of recording a lis pendens is not jurisdictional. Rutledge v. Rutledge, 119 Cal.App.2d 114, 120, 259 P.2d 79, 82 (1953). Failure to so file, however, may result in subsequent bona fide purchasers and encumbrancers of record at the time the judgment is recorded not being bound by the partition judgment. See Section 874.220 (persons not bound by judgment).
Subdivision (b) is new. The duty under subdivision (b) is upon the person seeking to join additional property to record the lis pendens; this might be either the plaintiff or a cross-complainant.
Subdivision (c) is new. The recording of the lis pendens is an important step in the partition action. Prompt recording enables the court to deal with the title with certainty. The person required to record might be either the plaintiff or a cross-complainant.
Assembly Committee Comments
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 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. The bill also repealed several laws and provisions to meet the Commission’s goals of streamlining and modernizing California’s partition 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.
A major change Assembly Bill 1671 made was for owners of successive interests to be given the right to seek partition, though the owners must show that partition is in the best interest of the parties. The Commission also recommended that the parties be able to pick which property interests would be partitioned.
In addition, Assembly Bill 1671 liberalized the instances of when a sale of 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. Physical division was required unless such a division would cause significant prejudice. If prejudice would result, then the property could be sold with division of the proceeds. While Assembly bill 1671 does continue the existing preference for physically partitioning 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.
Assembly Bill 1671 also introduced a third manner of partition, partition by appraisal. This version of partition was introduced for use in situations where physical division is inequitable and partition by sale may have undesired tax liability. Under partition by appraisal, which requires all the parties’ consent, a referee will appraise the property and any party can buy any of the interests in the property at the appraised price.
Additionally, the bill streamlined many procedural aspects of partition. This included clarifying the trial court’s powers. The bill also took away the referee’s judicial powers, making the referee into more of an advisory role rather than a decision-making role. Several provisions that were over one hundred years old were also repealed.
The bill further expanded existing law to provide detailed procedure 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 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.
Further, the bill changed the bid requirements for properties being sold under partition. Under the previous law, new bids had to exceed the previous bid by ten percent. Assembly Bill 1671 adopted the probate standard of increasing bids and applied it to partition sales. Under this new standard, new bids in partition sales must exceed ten percent on the first ten thousand dollars of the previous bid and five percent on any further amount.
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.
Another important change the bill made was expanding attorney’s fees as recoverable partition costs. The bill included the attorney’s fees for prosecuting or defending a related action for the common benefit of the property owners as recoverable under the costs of partition.
Under the old statutes, partition judgment was binding even towards someone who had an unrecorded interest in the property but was not a party in the lawsuit. The Commission found this rule harsh and potentially unconstitutional. The bill introduced a rule where the partition judgment would not be binding on a non-party with an unrecorded interest in the property if the plaintiff knew or should have known of the non-party’s interest.
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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