Partition action Archives

How does a court make an accounting when a property is partitioned by division? (CCP § 873.250)

Published on: June 17, 2022 | By Underwood Law Firm, P.C.

A lawyer on his desk signing a document. When there is a court-ordered partition by division, there are several steps that both the court and parties take to ensure that the property is physically divided both equally and equitably. Read on to find out the different avenues the court takes when deciding a partition by division lawsuit.

How does the Court Account for partition by Division?

First, the court operates on the assumed guideline that all parties should have the property divided in the most equal and equitable ways possible. The court in the Canepari v. Pascale court case found that there is a rebuttable presumption that the partitioned property should be equally divided. This means that if each co-owner or tenant holds a 50 percent interest in the property, then the property in question is divided as physically possible to a 50/50 divide.

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Is a jury trial available in a partition action? (Shaw v. Superior Court (2017) 2 Cal.5th 983)

Published on: June 8, 2022 | By Underwood Law Firm, P.C.

A courtroom full of empty chairs. Generally speaking, no, jury trials are not available in partition actions because partition action lawsuits are generally based on equity and therefore do not need a jury trial to decide each party’s rights.

However, in some specific scenarios, it is within the court’s discretion to allow factual issues or claims to the property to be heard by a jury in an equitable action, as is the plaintiff’s constitutional right. Read on to find out the avenues in which jury trials are available for those seeking or defending partition action lawsuits.

What is a partition action?

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Can a guarantor in the property sue for partition?

Published on: June 3, 2022 | By Underwood Law Firm, P.C.

An unbalanced scale on a desk Unless the guarantor has an interest in the property, such as a joint tenancy, tenancy in common, or tenancy by the entirety, then no, a guarantor in the property can not sue for partition.

This seems complicated, but if you break down that a guarantor simply acts as collateral against a property mortgage, and those who are eligible to bring a partition action lawsuit must have an actual interest in the property, it starts to make more sense. Read on to find out more about how these two concepts interact in the world of real estate law.

What is a guarantor?

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Can a co-owner lawfully adverse possess the other tenant’s interest in the property? (Civ. Code § 683)

Published on: June 1, 2022 | By Underwood Law Firm, P.C.

While it is possible for a co-owner to lawfully adversely possess the other tenant’s interest in the property under California law, in practice, it is quite difficult and cumbersome.

Can a co-owner lawfully adverse possess the other tenant’s interest in the property? Blog Image for Underwood Law Firm, P.C. If you co-own or are a co-tenant of a shared piece of real estate property, possession is not enough for the court to determine that the other party will lose their rights or their interest in your shared real estate property.

Read on to find out the elements that must be taken and proven in court to have a co-owner lawfully and successfully adversely possess the other tenants’ interest in the property.

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Can someone foreclose on a property during a partition action?

Published on: May 25, 2022 | By Underwood Law Firm, P.C.

While the brief answer is “yes,” the issue is a bit complicated, like many things in the real estate litigation world.

Who is a proper party to a partition action?

Generally, any person claiming an interest in a piece of real estate must be joined in the action in order to fully settle all issues with respect to that property. If a person is not joined, then the court case is not binding, or res judicata, with respect to that person. As such, a partition action includes not only all title owners but also any companies claiming a mortgage interest.

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Can Rent Control Laws Prevent a Partition Eviction? (Civ. Code § 1632)

Published on: May 21, 2022 | By Underwood Law Firm, P.C.

No, rent control laws cannot prevent a partition eviction. However, the answer is a bit more complicated than one might think. There are very specific rules and regulations in California that regulate both rent control laws and partition action evictions. Read on to learn more.

What is Rent Control?

While the benefits of rent control vary state-to-state, the regulations of each state’s rent control laws and regulations seek to restrict how much a landlord can raise prices on rent, restrict eviction against long-term tenants, and protect the tenant from rising costs associated with renting the landlord’s property.

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Does an equitable owner have a right to partition property? (CCP § 872.210)

Published on: November 24, 2021 | By Underwood Law Firm, P.C.

stacked of books on a desk
When a title owner sues to partition the property, then the matter is relatively straightforward. On the other hand, when a person claims to be an owner of the property but does not appear on the title, can they still sue to partition the property?

Who can sue for partition?

A legal titleholder—as well as the holder of an equitable title to an undivided interest—may sue to establish his or her right and to obtain a division of the common property. (Varni v. Devoto (1909) 10 Cal.App. 304.) Not all equitable titles, however, are created equal. Indeed, the partition statute explicitly lists the types of equitable interests that may have a right to seek recourse through the partition.

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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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How Does Accounting Work In A Partition By Division? (CCP § 873.250)

Published on: November 5, 2021 | By Underwood Law Firm, P.C.

Big house facade with texts place on the image "How does an accounting work in a partition by division?"
When two parties jointly own property but cannot agree on its use, then the sale of the property by a “partition” action is frequently a great remedy to solve the dispute. This tool, however, is not available in all circumstances. While a “partition by sale” makes a lot of sense with regard to a single-family home, it may not make as much sense when the land at issue is vacant undeveloped land. In that instance, a partition by division—the simple division of the property—may be the best outcome for all the parties. A partition by division, however, raises the question of how to account for unequal contributions to the property.

Amounts Paid For Partition Action

Code of Civil Procedure section 873.250 provides that where a division of property cannot be made equally among the parties according to their interests, without prejudice to any party, then compensation may be required to be made by one party to another to correct the inequality. This is commonly called “owelty.”

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