California Partition Law Blog
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.
(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. The couple decides to buy lots of furniture and decorations for their house, which they pay for equally. The couple spends a great amount of money on this personal property, and they share enjoyment of the furniture and various decorations.
After several years, Shawn and Julie’s relationship breaks down. They can’t agree on what to do with the house, so Shawn brings a partition lawsuit. The couple also can’t agree on what to do with the furniture and decorations for the house, so Shawn also seeks a partition of personal property along with the house.
Here, Shawn can do this. CCP § 872.240 allows personal property to be partitioned with real property if it happens in the same lawsuit.
The court orders a partition by sale of the house and the personal property. The house is sold and the sale proceeds accordingly. The court also orders a partition by sale of the personal property. Similarly, all the personal property is sold, and the proceeds are distributed accordingly.
Law Revision Commission Comments (CCP § 872.240)
1976 Addition
Section 872.240 continues the last sentence of former Section 752a. Where different parties are interested in real and personal property joined in the action, severance may be appropriate. See Section 1048 (severance and consolidation of issues and causes).
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.
How Can the Attorneys at Underwood Law Assist You?
At Underwood Law Firm, P.C., we have extensive experience in partition actions. If you are a co-owner of real property in California and are excluded from possession, a partition and court-ordered sale of the property could be the most beneficial remedy after establishing an ouster. Please contact our office for any partition questions.
Learn more here.