Partition Action Archives

The Complete Guide to the Partition of Real Property Act (Part 3)

Published on: November 17, 2023 | By Underwood Law Firm, P.C.

How does the court appraise the property (CCP § 874.316)?

As was noted previously, the court shall order an appraisal of the property once it determines that the parties are entitled to partition. (CCP § 874.316.) But how does that appraisal process work?

Once the court orders the appraisal, it needs to appoint a disinterested and licensed appraiser to value the property as if only one person owned it. This is because properties with multiple ownership interests typically sell for less. Once the appraisal is complete, the appraiser must file it with the court. After this is done, the court must conduct a hearing to determine the property’s fair market value 30 days after notice of the appraisal is sent to each party. (CCP § 874.316 (f).)

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The Complete Guide to the Partition of Real Property Act (Part 2)

Published on: November 10, 2023 | By Underwood Law Firm, P.C.

When does the Partition of Real Property Act apply (CCP § 874.313)?

underwood-partition-real-property-guide-part-2-300x300 As noted previously, the Partition of Real Property Act applies to real property held in tenancy in common where there is no agreement in a record binding all the co-owners related to partition. (CCP § 874.311.) But does that mean its provisions are mandatory in such situations? Case law and legislative history suggest the answer to that question is “yes.”

For one, the Code states that the property “shall” be partitioned under the Partition of Real Property Act unless all of the cotenants (including the defendants to the action) otherwise agree. (CCP § 874.313.) This mirrors the Uniform Partition of Heirs Property Act, which provides that if the property is heirs property, “the property must be partitioned under this act unless all of the cotenants otherwise agree in a record.”

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The Complete Guide to the Partition of Real Property Act (Part 1)

Published on: November 3, 2023 | By Underwood Law Firm, P.C.

underwood-partition-real-property-guide-part-1-300x300 It’s rare that a new law comes along that turns an entire established legal practice on its head. Yet that’s precisely what California’s Partition of Real Property Act intends to do. Revised in 1976, California’s partition laws remained unchanged and untouched for almost fifty years.

In 2021 and 2022, however, the California Legislature passed the Partition of Heirs Property Act, then revised it into the California Partition of Real Property Act. The new statutes in this bill provide a new procedural process for how partitions are conducted in the state, provided the subject property qualifies for its provisions.

While the passage of a new law within a particular legal field is always exciting, it also has its downsides. The Partition of Real Property Act is currently in effect and will continue to apply to specific partition actions filed from this point forward. However, because the law only became active in January of 2023, appellate courts have yet to take a crack at its provisions to aid attorneys and litigants in how they should be interpreted.

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Does the Attorney-Client privilege apply to Trustees and Powers of Attorney? (Probate Code section 4123)

Published on: October 25, 2023 | By Underwood Law Firm, P.C.

underwood-attorney-client-privilege-power-attorney-300x300 The attorney-client privilege is well-known for a reason. It is a tenant of the legal profession, allowing for clients to approach attorneys with honesty and sincerity without fear that what they say will ever “leave the room,” so to speak.

But its application to various situations and circumstances can become quite complicated. For example, two of the most common types of arrangements when it comes to estate planning are the establishment of trusts and powers of attorney. Both serve unique purposes, and both approach the attorney-client privilege quite differently.

What is a power of attorney?

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Does a Partition Count as a Bankruptcy Claim?

Published on: October 13, 2023 | By Underwood Law Firm, P.C.

underwood-does-partition-count-bankruptcy-claim-300x300 Yes, it can. Partitions and bankruptcy can interact in unusual ways despite the fact that they can often seek the same thing: the sale of a piece of property.

Nonetheless, a co-owner of property filing for bankruptcy either before or during a partition lawsuit immediately raises several issues for the other innocent co-owners. For example, they’ll need to decide whether they can file a bankruptcy claim, and they’ll also need to figure out whether their partition action is subject to the automatic stay provisions of bankruptcy.

As such, in these situations, the right representation can make all the difference. At Underwood Law Firm, our attorneys know the ins and outs of partition actions, and are ready to handle the accompanying litigation that’s sure to result, even in bankruptcy courts.

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Who is a “responsible bidder” under the Partition Law (CCP § 873.740)?

Published on: October 6, 2023 | By Underwood Law Firm, P.C.

underwood-responsible-bidder-partition-300x300 Under the Partition Law, “[a] bidder is responsible if it can perform the contract as promised.” (PCC § 20162; Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1438.) That means, in essence, that it can be determined from the face of the bid itself that it will be viable, without outside investigation or information. (Taylor Bus Service, Inc. v. San Diego Bd. Of Education (1987) 195 Cal.App.3d 1331, 1342.)

The concept of the “responsible bidder” comes up at the end of partition cases when the court is deciding whether the confirm or vacate the partition sale. Essentially, the law provides that if a “responsible bidder” makes a viable bid above the sales price, then the court may vacate the sale and either sell the property to the bidder, or start a new round of marketing the property.

For parties who were looking forward to a sale, this can be devastating news if the court chooses to send the house back to the market. As such, having the right attorney by your side can make all the difference. At Underwood Law Firm, our attorneys are well versed enough in the practice and procedure of partition actions to help you get the answers and relief you need

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A Guide to Appealing an Interlocutory Judgement

Published on: September 29, 2023 | By Underwood Law Firm, P.C.

Does the appeal of an interlocutory judgment automatically stay the partition case?

No. An appeal of an interlocutory judgment in a partition case is not stayed unless the appellant files an undertaking. (CCP §§ 917.4, 917.5.) Normally, appeals of court judgments result in an “automatic” stay that restrains the lower trial court from issuing any more orders until the appeal process is completed.

There, are however, certain types of orders where this rule is inapplicable. Instead, if the appealing party wants to stay lower court proceedings, they must post a bond to the court called an “undertaking.” Interlocutory judgments of partition fall into this category because they are orders that dispose of real property.

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Can a Tenant in Common Force a Sale of Property in California?

Published on: September 15, 2023 | By Underwood Law Firm, P.C.

Can a Tenant in Common Force a Sale?

Yes. Tenants in common (TIC), as co-owners of real property are entitled to try and force a sale of that property by filing a lawsuit called a partition. Like many other aspects of the law, however, this is easier said than done. Many issues can arise during a partition suit, so having the right attorneys by your side can make all the difference.

At Underwood Law Firm, our attorneys are well-versed in all forms of co-tenancy and partitions. The rights and duties that follow each of these ownership schemes are unique, making them a key issue in real estate litigation.

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What is the Liability of a Partition Referee? (Holt v. Brock (2022) 85 Cal.App.5th 611)

Published on: August 30, 2023 | By Underwood Law Firm, P.C.

underwood-liability-of-partition-referee-300x300 Generally, when a trial court orders an interlocutory judgment directing a partition by sale, it can appoint a referee to conduct the sale (CCP § 873.010). However, when a party to the partition feels that they have been aggrieved by the actions of this court-appointed referee, they may bring an action against them.

When this occurs, the party may contend that the referee violated some fiduciary duties or committed some torts while performing the role appointed to them by the court. However, when a role is appointed by a court, the person holding that role may be entitled to what is known as quasi-judicial immunity.

What is Quasi-Judicial Immunity?

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Code of Civil Procedure (CCP) Section 872.240—Joinder of Property

Published on: August 2, 2023 | By Underwood Law Firm, P.C.

underwood-ccp-joinder-property-300x300 The California Partition Law begins at Code of Civil Procedure section 872.010 and ends at Code of Civil Procedure section 874.323. Section 872.240 allows for personal property to be partitioned with real property. The purpose of Section 872.240 is to give parties an avenue to partition their personal property alongside their real property if they want to.

Code of Civil Procedure section 872.240 states

Real and personal property may be partitioned in one action.

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