Partition action Archives

Can a trustee file a partition action? (Prob. Code § 16226.)

Published on: November 11, 2024 | By Underwood Law Firm, P.C.

underwood-trustee-partition-action-300x300 A trust set up for property gives beneficiaries a right to the property once the settlor has passed away. This means beneficiaries may become co-owners. However, the trustee may also hold an interest in the property as well. If the trustee is a co-owner of the property, they can file a partition suit. This is important if you are interested in filing a partition suit either as a trustee or co-owner of a property where the trustee holds an interest.

How can a trustee hold an interest in the property?

The trustor creates the trust and places the asset or property into the trust to be held and transferred. The benefit of the trust will be passed to the beneficiaries upon death. These beneficiaries receive the assets like property once certain conditions occur. For example, following the death of the trustor. The trustee will manage the trust and ensure it is carried out according to the trustor’s wishes. A trustee can be a beneficiary but, the trustee typically holds the property for the benefit of another. (Estate of Yool (2007) 151 Cal.App.4th 867, 874.) This may impact future rights and interests in property, so the right to partition will only be upheld if it is in the best interest of the parties. (CCP § 872.710.)

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Are rents recoverable in a partition action? (McWhorter v. McWhorter (1929) 99 Cal.App. 293)

Published on: November 1, 2024 | By Underwood Law Firm, P.C.

underwood-rents-recoverable-partition-action-300x300 In a partition action the sale proceeds are distributed based on a party’s interest in the property. (Code Civ. Proc., § 872.810.) This includes parties’ ownership interest as well as what improvements they made on the property or other factors. (Code Civ. Proc., § 873.220.) In pursuing partition by sale, division of proceeds may raise questions for owners as to what they can collect. Depending on how the property was used, one co-owner may have a claim against the other for rent.

Why a co-owner may claim they are owed rents:

Under the partition statutes, the court may allow an accounting or other adjustments to compensate co-owners under principles of fairness. (Code Civ. Proc., § 872.140.) Under these compensatory adjustments one co-owner may claim they are owed rents by the other co-owner.

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Can a Co-Owner Recover Value of Time or Services in a Partition Action?

Published on: September 11, 2024 | By Underwood Law Firm, P.C.

underwood-recover-value-time-services-300x300 The purpose of this article is to explain whether a property owner can recover value of time or services in a partition action. Understanding whether an owner can recover the value of time or services is important because it directly affects the compensation they are entitled to recover in a partition action.

What is a partition action?

A partition action is a court-ordered process that occurs when a property owner forces the sale of jointly owned real estate property. Partitions are designed to determine the final equitable sum of a property owner’s interest in real estate, allowing each co-worker to take their fair share of equity, before going their separate ways. Each owner is entitled to recover their fair share of the property’s value. This means each co-owner is guaranteed to receive their equal share of rents and profits from a property they co-own through an equal division process performed by the court. (Cal. Civ. Proc. Code § 872.510.)

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Is It Possible to Bring a Partition Action in Federal Court?

Published on: August 28, 2024 | By Underwood Law Firm, P.C.

underwood-partition-federal-court-300x300 The purpose of this article is to explain how a partition action could be brought in federal court. While it is possible to bring a partition action in a federal court, because of how state-specific partition statutes are, partition matters are usually handled in state courts.

Generally, partition actions are governed by state statutes. Also, a claim for partition is usually resolved by equitable remedies, meaning the court follows equitable principles. (Elbert, Ltd. v. Federated Income Properties (1953) 120 Cal. App. 2d 194, 200.) This means protecting the rights of co-tenants or owners and determining rights in a fair way. The jurisdiction to handle a partition claim and determine equitable remedies is granted by a state constitution or by state or federal statutes.

These state statutes give state courts jurisdiction to handle partition claims alongside other real estate issues. For example, in California, the California Code of Civil Procedure section 872.110 gives state superior courts jurisdiction to handle partition matters.

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A Guide to “Necessary” Parties in a Partition Action (CCP § 872.510.)

Published on: July 12, 2024 | By Underwood Law Firm, P.C.

underwood-guide-necessary-parties-partition-action-300x300 The purpose of this blog post is to discuss who must be named in a partition lawsuit. It is important to name all the necessary parties so that the Court can properly issue a judgment at the conclusion of the partition action. As partition lawsuits involve rights to property, it is pretty obvious that the owners of the property and the mortgage broker should be joined. But the question becomes more difficult as the interests become less connected, like easement holders or other persons who have liens against the individual owners. As such, this article aims to provide clarity on the process.

What Does the Law Say?

Under Code of Civil Procedure section 872.510, the plaintiff must join as defendants all persons having or claiming interests in the estate, persons who are actually known to the plaintiff to have such interests, or persons who, from an inspection of the property, appear to have such interests. Sections 872.510 to 872.550 define “interest,” as situations, includes liens, and a “lien” means a mortgage, deed of trust, or other security interest in property whether arising from contract, statute, common law, or equity. According to the Legislative Committee Comment, under Section 872.510, only persons having interests in the estate or estates as to which partition is sought need to be joined.

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Who Receives Notice of Sale in a Partition Action (CCP § 873.640)?

Published on: June 28, 2024 | By Underwood Law Firm, P.C.

underwood-receive-notice-of-sale-partition-action-300x300 The purpose of this article is to explain a partition sale and who must be notified of a sale. If the co-owners cannot agree about what to do with a property or whether they want to sell it, a partition action may be necessary. This means forcing the sale of the property to divide the co-owners’ interests in it and divide the value of the property accordingly. Because a home or property cannot necessarily be physically split in half, it must be sold. When that sale occurs, the law requires certain parties to receive notice of that sale.

How does a sale in a partition action work?

A property sold through partition generally sells in the same manner as a normal seller. A sale in a partition action is often done through a referee. This is usually done through a public auction or a private sale. If it is being sold publicly through the court, an appraiser will value the property and it will be sold at a public auction which occurs under court supervision. The court may specifically include its own terms for the sale such as all cash, sale on credit with a specified type of security, etc. (CCP § 873.630.)

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The Costs of A Partition Action

Published on: May 1, 2024 | By Underwood Law Firm, P.C.

underwood-costs-of-partition-action-300x300 In every lawsuit, one of the biggest consideration is the cost. Frequently, clients are very eager to understand the amount that they will be required to pay to have their case resolved. After all, most people do not have a pot of money set aside for lawsuits, and are forced to eat into their savings to pay for an attorney to help with their legal problems. Even when attorneys’ fees are available for reimbursement, as they are in a partition action, the question of costs is always a significant question.

While an attorney can never predict the exact amount down to the dollar that a case will cost, they can and should share the factors that could influence the amount that the client may ultimately have to pay to get the case resolved. For example, in a partition action, there are common issues that arise that could change the cost of the matter. That said, a relatively vanilla partition action generally costs more or less between $10,000 to $30,000.

Factors that Affect a Partition Action

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Distributions of Proceeds in Partition Actions (CCP Section 873.820)

Published on: April 25, 2024 | By Underwood Law Firm, P.C.

underwood-distributions-proceeds-partition-action-300x300 Before the owners receive the proceeds from a partition sale, costs and expenses related to the partition action must be paid. Code of Civil Procedure section 873.820 sets forth the order that these expenses and costs must paid before the owners receive their proportional interest in the remaining proceeds. Specifically, it states that the proceeds must be distributed in this order:

Payment of the expenses related to the sale
Payment of the costs arising out of the partition

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Testimony on Property Value in Partition Cases (Evid. Code Section 813)

Published on: February 21, 2024 | By Underwood Law Firm, P.C.

underwood-testimony-property-value-partition-cases-300x300 The estimated value of a piece of property can be important for resolving several types of legal disputes. It is crucial when a property owner needs to establish damages when the government interferes with the owner’s property and diminishes its value. Spouses may wish to testify regarding the value of their marital property when it is divided during divorce proceedings. A property owner may also want to testify as to their property’s value to contest a bank’s foreclosure on the property.

Testimony regarding a property’s estimated value can also be important during partition proceedings: when one or more co-owners of a property want to sell their property interest a question arises under the Partition of Real Property Act as to the Property’s value. As such, determining who can answer that question becomes of critical importance.

Normally, who can testify as to a property’s value?

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How to file a partition action in California

Published on: February 16, 2024 | By Underwood Law Firm, P.C.

underwood-how-to-file-partition-action-california-300x300 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.

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