What are some examples of circumstances where partition is needed?
Many different types of property ownership disputes can be solved by partition. Where a property is owned by multiple individuals, regardless of the percentages of their ownership, that property can be equitably divided by partition. Under the partition statutes, the only people excluded from bringing a partition action are married couples or putative spouses. (C.C.P. § 872.210.) This is because community property law, a separate area of California law, governs those disputes. However, this means anyone else can bring a partition action. A former boyfriend and girlfriend disagreeing about what to do with property after breaking up could benefit from a partition action. Siblings who just inherited a family home and disagree about what to do with it could bring a partition action. (Orien v. Lutz (2017) 16 Cal.App.5th 957, 960.) Even investors who own real estate together can bring a partition action.
What does a partition lawyer do?
A partition lawyer will help you navigate the steps to bring a partition lawsuit. Not only will they help you navigate the judicial process they will also give you their tactical advice. In the beginning of the lawsuit, your partition lawyer will meet with you to discuss litigation strategy to get you the best possible outcome. They will draft a complaint asserting your right to partition and any other related claims you might have against your co-owner or relating to the property.
As you proceed through the lawsuit, your attorney will continue to keep you informed of any developments and motions you might need to make to the court. Usually in a partition lawsuit, co-owners will pursue a partition by sale. This means the property is sold and the proceeds are distributed equitably. As this necessitates the property being sold, your lawyer will help find a referee who will deal with the sale process.
Of course, the proceeds are divided equitably, meaning fairly. Your action may require an accounting allowing the court to adjust your compensation based on your contributions to the property. (CCP 872.140.) If there are any other costs, like taxes, insurance, repairs, or mortgage payments being disputed, an accounting will ensure the court considers those as well. (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035–36.) For example, if you painted the property or made other improvements necessary to make the property ready for sale those will be considered in the accounting. (Scott v. Staggs (1954) 129 Cal.App.2d 54, 57-58.) This may also mean you are entitled to more than just your percentage of ownership of the sale proceeds.
What makes a partition lawyer right for the job?
A partition lawyer needs to be able to navigate partition law and its various statutes. As partition law has evolved, California implemented the Uniform Partition of Heirs Property Act in 2022 and the Partition of Real Property Act in 2023. A diligent partition lawyer keeps abreast of all these changes to best serve their clients and obtain the best outcome. A partition lawyer also brings experience in litigation and civil procedure to the table, helping clients handle their disputes in the most efficient way. Because partition is a niche practice, partition attorneys often pull from other areas of expertise like real estate and business law. If you are a lawyer or law student interested in practicing partition law, please refer to our careers page for openings.
How can a partition lawyer help you navigate partition law?
Partition matters are governed by California civil procedure law and a specific subset of that law referred to as the California partition statutes. The California legislature has enacted several acts on partition and a partition lawyer is familiar with how to apply these rules and how to leverage their nuances in your favor.
Beyond just the law, your attorney can help with other decisions in the process. There are different types of partition available before the court. Partition in kind is preferred by the court but is less common now with more property ownership being residences and not fields. In an action for partition in kind, the land would be physically divided equitably. (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 364.) This requires the land to be able to be divided equally. Alternatively, owners can pursue a partition by sale. This means the land or property is sold and the proceeds of that sale are divided equitably. (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 598.) This can be done through the court or sold privately. (C.C.P. § 873.520-873.530.) A partition by sale requires a referee appointed to deal with the sale itself as a neutral third party. A partition attorney is familiar with partition referees who can conduct this sale under supervision of the court. With these different possible solutions, your partition attorney will work with you to find the best solution for your situation.
How can a partition lawyer help if you don’t want a partition?
In California, all property owners have a right to partition. If your co-owner is wanting to partition or dispose of the property and you do not want to, partition lawyers may be able to help. Because of the absolute right to partition, the few available options are waiver of the right to partition or a buyout. (C.C.P. § 872.710(b).) If the two owners are tenants in common and they had an agreement including a clause that waived their right to partition, it may be possible to counter the partition action. (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.)
Otherwise, if your circumstances do not align with a waiver of partition rights, you may need to proceed with a buy out. (C.C.P. § 874.317.) This means you would buy out your co-owner of their interest in the property based on how much the property has been appraised for. (Cheng v. Coastal L.B. Associates, LLC (2021) 69 Cal.App.5th 112, 115.)
What is an example of what this all might look like?
For example, Julie and Shawn have inherited their mother’s home in equal parts. Julie and Shawn live there for a while. Julie repaints the outside of the house, and Shawn fixes some minor plumbing issues. Eventually, Julie wants to move out to start her own family. Shawn does not want to move out, but he does not want someone else to come live in the home. Julie goes to a partition lawyer for advice. The lawyer discusses her options and helps her assert her right to partition. Julie and her lawyer pursue a partition by sale action with the court. The property needs to be sold as it is a single-family home and cannot be practically split down the middle. The court issues an interlocutory judgment for partition.
Here, Shawn would also seek out a lawyer. His lawyer helps him pursue a buyout of Julie’s interest in the home. After being notified of the sale, if Shawn was unable to buy out Julie’s half or Shawn was unable to pay, the partition action would proceed. Julie and her attorney would offer a referee who would conduct the sale. At the end of the sale those proceeds are distributed based on Shawn and Julie’s ownership shares. Julie or Shawn could ask for an accounting if they wanted to be compensated for their efforts in repainting or fixing the home.
Conclusion
A partition lawyer is skilled in the partition process and the litigation that accompanies it. Because of this, they are able to help property owners find a solution that benefits them. At Underwood Law, our partition attorneys can help you navigate your partition action efficiently and with care. We are here to help.