How to file a partition action in California

When co-owners of real estate cannot agree on how to divide or use their property, filing a partition lawsuit becomes a necessary course of action. In California, where real estate is often a significant investment, understanding the process of partitioning property is essential. In this article, we’ll walk you through the steps involved in filing a partition lawsuit in California, empowering you to navigate this legal process effectively.

What should you know before filing a Partition Action?

1. Understand the Concept of Partition.

Partition is a legal process that allows co-owners of real property to divide their interests in the property or force a sale to divide the proceeds. This legal remedy is commonly sought when co-owners disagree on how to use or manage the property and cannot reach a voluntary agreement.

2. Determine Your Right to Partition 

Before initiating a partition action, ensure that you have a legal right to seek partition. In California, any co-owner of real property, whether it’s a joint tenant, tenant in common, or co-owner through other arrangements, generally has the right to request partition unless there are specific contractual agreements preventing it. 

3. Consult with a Real Estate Attorney at Underwood Law Firm, P.C. 

Navigating a partition action can be complex, involving various legal complications and procedural requirements. Consulting with an experienced real estate attorney is highly recommended to assess your rights, evaluate your case’s merits, and guide you through the legal process.

4. Attempt Negotiation or Mediation 

Before resorting to litigation, consider engaging in negotiations or mediation with the other co-owners to reach a mutually acceptable resolution. Mediation can often facilitate productive discussions and help parties find creative solutions to their disagreements, potentially avoiding the need for a partition lawsuit altogether.

How to Prepare and File the Partition Complaint?

If negotiation or mediation fails to resolve the dispute, the next step is to prepare and file a partition complaint. You have to file the Complaint in the Superior Court of California for the County where the Property is located. This is the only court with the power to hear the case. Every county in California has a Superior Court. Many counties have several branches. Make sure you file the action and list the right branch of the right county to avoid rejection. The Complaint for Partition Action is typed up in a specific legal format where each line is numbered, called pleading paper.

The complaint should outline your legal basis for seeking partition, describe the property involved, and specify the relief you’re seeking, whether it’s physical division or sale. 

In addition to the Complaint, it is necessary to file the Judicial Council forms, Summons (SUM-100) and Civil Cover Sheet (CM-010).

The summons is a Judicial Counsel form issued by the Plaintiff that notifies the Defendants that they are being sued. Specifically, the Summons invites or “summons” the Defendants into Court and it is the operative legal document that ensures that Defendants receive proper notice of the lawsuit in order to comply with Due Process requirements under the Fourteenth Amendment to the United States Constitution. 

Summons typically contain information about the lawsuit, including the parties involved, the court jurisdiction, and any specific instructions the recipient must follow. Failure to comply with a summons can result in legal consequences (CCP §412.20)).

The Civil Cover Sheet is a Judicial Council form and must be filed in each Partition Action. The Judicial Council requires the filing of this form to ensure that cases within the Superior Court are directed to the right department, and are properly tracked for purposes of complying with State law on ensuring the quick resolution of lawsuits in California. 

If a party that is required to provide a cover sheet under this rule or a similar local rule fails to do so or provides a defective or incomplete cover sheet at the time the party’s first paper is submitted for filing, the clerk of the court must file the paper. Failure of a party or a party’s counsel to file a cover sheet as required by this rule may subject that party, its counsel, or both, to sanctions under rule 2.30.(California Rule of Court 3.220(b)(c))

After filing the partition complaint, the complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served, and proof of service must be filed within 30 days after the filing of the amended complaint. (California Rules of Court 3.110(b)). 

Proper service ensures that the defendants are aware of the legal proceedings and have an opportunity to respond. The defendants have a specified period to respond to the partition complaint, typically 30 days in California. 

The defendants’ response may include filing an answer to the complaint and raising any defenses or counterclaims they may have.

What to expect after the complaint is served?

Throughout the partition action, both parties will engage in discovery, exchange relevant information and evidence, and attend court hearings as necessary. Adhering to court rules and deadlines is crucial, as failure to do so could result in adverse consequences for your case.

As the partition lawsuit progresses, parties may continue settlement negotiations to reach a mutually acceptable resolution. If a settlement cannot be reached, the case will proceed to trial, where a judge will determine whether partition is appropriate and, if so, the method of partition or sale.

If the court orders partition, the property will be divided according to the terms of the judgment. If a sale is ordered, the proceeds will be distributed among the co-owners according to their respective ownership interests. Ensure compliance with the court’s orders to finalize the partition process.

Conclusion

Filing a partition lawsuit in California is a complex legal process that requires careful planning, strategic decision-making, and adherence to procedural requirements. By understanding the steps involved and seeking guidance from experienced legal professionals, you can navigate the partition process effectively and protect your interests in real property disputes. 

Remember that each case is unique, and seeking personalized legal advice is essential to achieve a favorable outcome. If you are ready to file a Partition Action, then please contact Underwood Law Firm, P.C. for an initial consultation.