Partition by Physical Division Archives

Is a litigation guarantee required in a Partition Action?

Published on: July 22, 2022 | By Underwood Law Firm, P.C.

Underwood-Blog-Images-2-1-300x300 While litigation guarantees are recommended in a lot of contested real estate issues in court, it is not required in a partition action. Read on to find out more about the nuances of litigation guarantees and their relationship with partition actions.

What is a partition action?

A partition action or a partition lawsuit is when one co-owner, or when one person with interest in the property wants to sell the property, but the other co-owners or others with interest in the property do not want to sell their ownership rights.

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Do you have a right to recover attorney’s fees in partition actions? (CCP § 874.020)

Published on: July 20, 2022 | By Underwood Law Firm, P.C.

Underwood-Blog-Images-1-2-300x300 Yes. In California, you have a right to recover attorney’s fees by statute. But that doesn’t mean that you can recover 100% of your fees, even in uncontested partitions. Courts will employ numerous equitable considerations in awarding costs, and the complexities of prolonged litigation may render some expenditures on your attorney unrecoverable. The focus of this blog post will therefore be those common issues that arise when attempting to recoup your costs.

The Authority for Awarding Attorney’s Fees in Partition Actions

Code of Civil Procedure, section 874.010 states that “[t]he costs of partition include: (a) [r]easonable attorney’s fees incurred or paid by a party for the common benefit.”

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Can You Partition Partnership Property? (Corp. Code § 16202)

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

Underwood-Blog-Images-1-1-300x300 Yes. Partnership property is subject to partition on the dissolution, accounting, and wind-up of partnership matters, just like other types of property. As real estate presents unique issues, however, there are many important things to know about the process to ensure that it is done correctly. The purpose of this blog post is to address some of the issues involved with partitioning property belonging to a partnership.

What is a Partnership?

Partnerships are a type of corporate entity with its own set of rules and regulations. By code, a partnership is born by the association of two or more individuals to carry on as co-owners of a business for profit, whether or not the persons intended to form a partnership. (Corp. Code § 16202.)

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Can I get compensated for improvements in a partition action (IE- upgrades)? (Code of Civil Procedure section 874.010)

Published on: July 6, 2022 | By Underwood Law Firm, P.C.

Underwood-Blog-Images-2-300x300 Yes. A party may be able to receive credits and/or offsets for upgrading a property in a partition action under many circumstances. In a partition lawsuit, two parties disagree about what to do with the jointly-owned property.

In those circumstances, one party can seek the sale of the property and then have the equity divided between all of the owners. Once the property is sold, the parties can make claims to the money left from the proceeds from the house.

One issue that often arises, however, is whether an improvement to the property—as opposed to a repair—is subject to an offset as part of the partition action. For example, if one party remodels a bathroom, would they have the right to an offset for that work?

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How does a partition by private sale work? (CCP § 872.720)

Published on: June 24, 2022 | By Underwood Law Firm, P.C.

A lawyer writing on a paperwork on his desk in front of his client. Partition by a private sale is a method of selling jointly owned property, either by joint tenants or tenants in common, under the court’s supervision via a court order or a court-ordered referee.

What is a partition lawsuit?

A partition action or a partition lawsuit is when one co-owner, or when one person with interest in the property wants to sell the property, but the other co-owners or others with interest in the property do not want to sell their ownership rights.

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What is the difference between a receiver and a partition referee? (CCP § 873.610)

Published on: June 20, 2022 | By Underwood Law Firm, P.C.

Two lawyers having an agreement and signing a paperwork. Receivers and partitions referees are cut from the same cloth. In actions involving property, they step in at the request of the parties or order of the court to properly dispose of or manage the property at issue. Their roles are to act as a third party with no ties to any of the co-owners interests in property via a partition lawsuit and to help the court and the judge to distribute the property or proceeds from the sale of the property fairly and equitably. That said, there are enough differences between the two to warrant litigants being put on notice.

At the Underwood Law Firm, our attorneys encounter both partition referees and receivers on a regular basis. We are well-versed in their appointment, associated costs, timelines, and the procedure they become involved in. As such, potential litigants should not hesitate to contact our office so that our team can begin helping you achieve your litigation goals.

What is a Partition Referee?

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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 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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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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