Partition Action Archives

Can someone foreclose on a property during a partition action?

Published on: May 25, 2022 | By Underwood Law Firm, P.C.

While the brief answer is “yes,” the issue is a bit complicated, like many things in the real estate litigation world.

Who is a proper party to a partition action?

Generally, any person claiming an interest in a piece of real estate must be joined in the action in order to fully settle all issues with respect to that property. If a person is not joined, then the court case is not binding, or res judicata, with respect to that person. As such, a partition action includes not only all title owners but also any companies claiming a mortgage interest.

Continue reading →

Can Rent Control Laws Prevent a Partition Eviction? (Civ. Code § 1632)

Published on: May 21, 2022 | By Underwood Law Firm, P.C.

No, rent control laws cannot prevent a partition eviction. However, the answer is a bit more complicated than one might think. There are very specific rules and regulations in California that regulate both rent control laws and partition action evictions. Read on to learn more.

What is Rent Control?

While the benefits of rent control vary state-to-state, the regulations of each state’s rent control laws and regulations seek to restrict how much a landlord can raise prices on rent, restrict eviction against long-term tenants, and protect the tenant from rising costs associated with renting the landlord’s property.

Continue reading →

Does an equitable owner have a right to partition property? (CCP § 872.210)

Published on: November 24, 2021 | By Underwood Law Firm, P.C.

stacked of books on a desk
When a title owner sues to partition the property, then the matter is relatively straightforward. On the other hand, when a person claims to be an owner of the property but does not appear on the title, can they still sue to partition the property?

Who can sue for partition?

A legal titleholder—as well as the holder of an equitable title to an undivided interest—may sue to establish his or her right and to obtain a division of the common property. (Varni v. Devoto (1909) 10 Cal.App. 304.) Not all equitable titles, however, are created equal. Indeed, the partition statute explicitly lists the types of equitable interests that may have a right to seek recourse through the partition.

Continue reading →

What Is a Partition Agreement? (CCP § 872.710)

Published on: November 21, 2021 | By Underwood Law Firm, P.C.

A lawyer signing a paperwork on his desk
One reason partition actions are a good option is that there is generally an absolute right to partition, but every rule has exceptions. In a partition action, the main exception is when the parties have executed a partition agreement. Generally, the right to partition can be waived by an express—or implied—an agreement between co-tenants. (CCP § 872.710; Penasquitos, Inc. v. Holladay (1972) 27 Cal.App.3d 356, 358.)

What is required for a partition agreement?

A partition agreement may be an express statement that the right to partition is waived. It may also be evidenced by a right of first refusal where one co-tenant is required to offer the property for sale to another co-tenant as a condition precedent to an action for partition. (Harrison v. Domergue (1969) 2724 Cal.App.2d 19, 21.)

Continue reading →

How Does Accounting Work In A Partition By Division? (CCP § 873.250)

Published on: November 5, 2021 | By Underwood Law Firm, P.C.

Big house facade with texts place on the image "How does an accounting work in a partition by division?"
When two parties jointly own property but cannot agree on its use, then the sale of the property by a “partition” action is frequently a great remedy to solve the dispute. This tool, however, is not available in all circumstances. While a “partition by sale” makes a lot of sense with regard to a single-family home, it may not make as much sense when the land at issue is vacant undeveloped land. In that instance, a partition by division—the simple division of the property—may be the best outcome for all the parties. A partition by division, however, raises the question of how to account for unequal contributions to the property.

Amounts Paid For Partition Action

Code of Civil Procedure section 873.250 provides that where a division of property cannot be made equally among the parties according to their interests, without prejudice to any party, then compensation may be required to be made by one party to another to correct the inequality. This is commonly called “owelty.”

Continue reading →

Who is a proper party to a partition action? (CCP § 872.540)

Published on: October 27, 2021 | By Underwood Law Firm, P.C.

types of property collage together in one image
The purpose of this post is to discuss who should be part of a partition action. This post will discuss who is typically joined, note some interesting problems, and address how to properly prosecute such an action. After reviewing this article, the reader will be better able to identify who should be named as a party in a partition action.

Partition Action

Generally, as a partition action will cause the sale of the property or otherwise affect the title, it is important to name all persons who have any sort of “interest” in the property. This inquiry generally begins by examining who is listed on the title.

Continue reading →

So, You Bought a House with Your Boyfriend

Published on: October 19, 2021 | By Underwood Law Firm, P.C.

artwork illustration of a house with 2 persons splitting up with a broken heart.
As a millennial, we’ve faced financial challenges different from all those before us. We graduated college with more debt into the harsh job market of the Great Recession and then have had to compete during one of the hottest housing markets ever. So, many of us have had to do things differently.

We’re having children later, getting married later, and maybe buying real estate before getting married. What happens, then, when you buy a property with someone that you’ve decided is not going to be part of your long-term plans, and now you cannot agree on what to do with it?

You’ve fought, you’ve negotiated, and now you just want to move on.

Continue reading →

How Does a Partition Lawsuit Work? (CCP § 874.720)

Published on: October 15, 2021 | By Underwood Law Firm, P.C.

Business woman relaxing on her office desk with paperworks on.
This article provides insight into how the partition process works so that you can know what to expect and hopefully navigate the process more smoothly. The typical steps for a partition lawsuit are described below.

Sometimes, when you inherit real estate together with another family member, or you buy an investment with a partner, the relationship deteriorates, and the parties cannot agree on what to do with the property. When you reach that situation, then a partition lawsuit is something you should consider.

The Partition Lawsuit Steps

Continue reading →

Is a Partition Always 50/50? (CCP § 874.040)

Published on: October 13, 2021 | By Underwood Law Firm, P.C.

50/50 illustration of a wall partition
The purpose of this post is to discuss how the proceeds of a partition action are divided between the owners of the property. This post will address the general rule for partition actions, address common instances, and provide some insight for anyone going through the process.

The first thing to know about partition actions is that they are governed by “fairness,” or what is commonly referred to in the law as “equity.” Although the California Code of Civil Procedure contains statutes that govern partition actions, all of a judge’s decisions in the action are supposed to be determined by what is fair. (CCP § 874.040.)

But what is fair? Generally, if a property is jointly owned by two parties and each of them has evenly split all of the costs, then naturally, fairness would dictate that they evenly split the proceeds from the sale. As many of us know, however, life is rarely so neat and clean.

Continue reading →