legal action Archives

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.)

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Can You Contest The Title in a Partition Action? (CCP § 872.210)

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

A chess board where the king fell down
In many ways, partition actions are relatively straightforward. Generally, in a partition action, the two property owners cannot agree on its use, and one of the owners asks the court to sell the property so each can go their separate ways.

The question arises of whether one of the two persons actually owns the property in the first instance. When there is a question of whether one of the parties is an owner, can you contest the title in a partition action? The answer is “yes,” as one of the primary purposes of a partition action is a determination of title.

Generally, at trial, the court must determine whether the plaintiff has the right to partition. (CCP § 872.210(a).) A question of ownership of property, as presented in a partition action, may be one of fact or law, depending on whether the determination of the issue involves a decision on conflicting facts or the application of the law to a stated set of facts. (Lieb v. Superior Court (1962) 199 Cal.App.2d 364.)

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The Surplus Land Act’s Pre-Negotiation Notice Requirement (Gov. Code § 65088.4)

Published on: November 8, 2021 | By Underwood Law Firm, P.C.

Aerial image of a wide portion land in a city
The revised Surplus Land Act contains negotiation requirements to encourage the sale of surplus public land. Also, the law makes it more likely that the land will ultimately be developed for as much housing as possible. Prior to entering negotiations, however, AB 1486 requires that the agency selling the surplus land must first give notice.

Government Code section 54222 states that “Any local agency disposing of surplus land shall send, prior to disposing of that property or participating in negotiations to dispose of that property with a prospective transferee, a written notice of availability to all of the following [list of persons]. (emphasis added.)”

By the use of the mandatory term shall, this section mandates notification and therefore ensures that the widest possible array of interested persons will be able to compete to develop the surplus land.

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Why Don’t Business Owners Receive Compensation Offers in Eminent Domain? (Gov. Code § 7267.1)

Published on: October 29, 2021 | By Underwood Law Firm, P.C.

Business man handing over an envelopment to another man inside the office
The purpose of this post is to address the process where a governmental entity makes an offer to purchase property in contemplation of the later use of the eminent domain.

This post will address the rule that applies for offers prior to eminent domain, known as “pre-condemnation offers,” address specifics applicable to business, and then contemplate some difficult questions.

Eminent Domain Compensation

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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.

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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

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How Does Eminent Domain Work?

Published on: October 14, 2021 | By Underwood Law Firm, P.C.

A person writing on an office desk holding a key beside a model miniature house.
For many of us, real estate is our most valuable asset and the thing that we rely on to provide security for retirement. It is also our passion where we can use our creativity to make our mark on the world. When we receive notice that it may be the subject of an eminent domain action, however, the unknown elements of the process can be a source of great anxiety.

This article provides insight into how the eminent domain process works so that you can know what to expect and hopefully navigate the process more smoothly. The typical steps for the eminent domain process are laid out below.

The Eminent Domain Steps

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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.

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Surplus Land Act Guidelines Released

Published on: September 22, 2021 | By Underwood Law Firm, P.C.

Person pointing at a justice or scale icon

Surplus Land Act

Government Code section 54230.5 contains the “penalty” or “enforcement” provisions in the updated Surplus Land Act enacted under Assembly Bills 1255 and 1486 in 2019. Specifically, Section 54230.5 (a)(1) creates a penalty of “30 percent of the final sale price of the land sold in violation of this article for a first violation and 50 percent of any subsequent violation.” This is a serious hammer for noncompliance. A public entity may rightly be concerned, however, with ambiguities or gaps in a newly-enacted law.

Recently, in April 2021, the California Department of Housing and Community Development (HCD) released “guidelines” to provide clarity on the law to avoid the perils of non-compliance. Broadly, the Guidelines include further refinement of “definitions,” information on the “surplus land determination process,” requirements to be placed on surplus land for affordable housing, reporting requirements, and performance monitoring and penalties. These Guidelines are made available here and through HCD’s website. Since the Guidelines are too extensive to be digested in a single blog post, later posts here will digest each of the pieces and–the remaining gaps–over time. Until then, they are worth reviewing in full.

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What is the Surplus Land Act?

Published on: September 22, 2021 | By Underwood Law Firm, P.C.

Aerial shot of a random city
In 2019, California passed a revision to the Surplus Land Act to make more public land available for private development in order to address the State’s ongoing housing crisis.

Who is subject to the Surplus Land Act?

Currently, as a result of the Legislature’s revision in 2019, the Surplus Land Act extends to any public entity within the State of California. Previously, the definition was limited to specified entities.

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