Partition By Sale Archives

What are the steps to partition trust property?

Published on: April 28, 2023 | By Underwood Law Firm, P.C.

4282023-300x300 Partitions are lawsuits that split up the property between multiple co-owners so that each can take their equity out of the home. The prototypical partition is that between unmarried partners or business partners. Both own equal shares, but only one wants to end the relationship and take their money out. Partitions enable this to happen, usually ending with a court-ordered sale of the subject property.

The presence of a trust changes this calculus. This is because a trustee typically holds the property for the benefit of another. (Estate of Yool (2007) 151 Cal.App.4th 867, 874.) As such, pursuing a partition becomes much more difficult to do, especially because partitions cannot be used to disrupt the purpose and provisions of an express irrevocable trust.

At the Underwood Law Firm, our attorneys are well-versed in these matters and familiar with the intricacies of the interactions between property law and probate procedures. The following are steps that every litigant should keep in mind before pursuing the partition of a property subject to a trust.

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#SCANDOVAL: Vanderpump Rules’ Star Tom Sandoval Refusing to Leave Home the Couple Shared… What Now?

Published on: April 19, 2023 | By Underwood Law Firm, P.C.

4192023-1-300x300 Following the explosive split between the two stars in the hit reality show, “Vanderpump Rules,” many are left wondering what will become of the couple’s $2.2 million dollar home. Prior to their split, Ariana Madix and Tom Sandoval bought a farmhouse-style home in 2019 and took their time to renovate the Property into their dream home.

Unfortunately, due to Sandoval’s alleged affair in March 2023, the couple split but are still living under the same roof, with Sandoval apparently refusing to leave and stating that Madix was free to leave if she had a problem with him staying.

What happens when one party wants to leave, and the other party wants to stay on their shared property? In these situations, an owner of commonly owned property like Madix may feel like they are being held hostage by a former partner and co-owner. Under these circumstances, a partition action may be the best option for a fresh start.

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How to Acquire a Default Judgement in a Quiet Title Action (CCP § 764.010)?

Published on: April 7, 2023 | By Underwood Law Firm, P.C.

472023-1-300x300 An action to quiet title allows a litigant to clear title or have the court establish title to a piece of real property where the title to that property is in the issue. Moreover, a quiet title action is not solely for the purpose of establishing a legal interest in real property but can also be asserted to establish an equitable interest in real property. For example, when two people claim that they own an entire piece of property, one of those parties may file a quiet title action to determine which one of the two persons actually holds title to the property.

Sometimes, however, the other party will refuse to participate in the lawsuit, which requires a party to win by “default.” In those circumstances, a question arises about what is necessary to do to succeed. The law explicitly addresses these circumstances.

Specifically, Code of Civil Procedure section 764.010 provides: “The court shall examine into and determine the plaintiff’s title against the claims of all the defendants. The court shall not enter judgment by default but shall, in all cases, require evidence of the plaintiff’s title and hear such evidence as may be offered to respect the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law.”

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Can one owner sign a lease for an entire property?

Published on: April 5, 2023 | By Underwood Law Firm, P.C.

452023-300x300 Yes, although the tenant is not allowed to exclude the non-consenting owners. The reason for this is grounded in ancient legal doctrine regarding the “right to possession” that all co-owners of property share together. Each owner may exercise this right, and each may grant it to a third party, should they so choose, even without the consent of the other owners.

While this may be legally allowed, however, it rarely results in anything other than trouble and lawsuits. In these situations, getting the right real estate attorney by your side can make all the difference. At the Underwood Law Firm, our attorneys are well-versed in the law surrounding co-ownership and the rights and duties accompanying it. Here, we’re with you every step of the way.

How does the law view leasing jointly-owned property?

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Can you partition a Bank Account (CCP § 872.210)?

Published on: March 31, 2023 | By Underwood Law Firm, P.C.

3312021-300x300 A partition action occurs when there are two or more title holders to a piece of property, and these title holders are unable to reach an agreement on splitting the subject property. Typically, a litigant brings a partition action to have the court force the sale of or split the subject property.

Generally, an action for partition can be brought forth by a co-owner of real property and a co-owner of personal property. Notably, a court can partition not only real property or real estate but also personal property of any kind. (CCP § 872.230(a).)

Indeed, courts in California have partitioned all types of personal property, including ownership of crops, shares of stock, and businesses. At the Underwood Law Firm, our attorneys are more than familiar with partition actions.

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10 Things Every Realtor Needs to Know About Partitions

Published on: March 29, 2023 | By Underwood Law Firm, P.C.

3292023-300x300 While it may not be obvious, a sizeable portion of the work that real estate agents and realtors do is court-ordered. Real estate law is a massive field, and often, the disposition of litigation results in the court forcing the sale of a property, be it a business, home, condominium, etc. As such, many realtors find themselves acting as agents or referees for parties to a lawsuit.

This situation finds its most common form in the partition. The partition is a special type of lawsuit wherein parties take their equity out of a property by putting it up for sale. However, should a real estate agent accept this task, there are a number of considerations they need to take in mind. The Underwood Law Firm handles partitions every day. As such, we’ve come up with 10 helpful items that every realtor should keep in mind if they’re tasked with partitioning a property.

Number 1: What is Partition and How Does a Sale Begin?

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Is a Partition Action Exempt from Bankruptcy Proceedings (CCP § 715.050)?

Published on: March 17, 2023 | By Underwood Law Firm, P.C.

3172023-300x300 Generally, a bankruptcy proceeding acts as a stay on the collection of debt as well as any acts needed to be taken to enforce a debt. The rules regarding partition actions in bankruptcy proceedings are codified in the Code of Civil Procedure section 715.050. Typically, whether a partition action is exempt from a bankruptcy proceeding depends on when the bankruptcy proceeding was initiated. Therefore, a bankruptcy proceeding will not necessarily prevent a person from recovering possession of premises for which they have the right to recover possession.

If a writ of possession was not yet obtained prior to the filing of a bankruptcy proceeding, then a tenant may be able to stop the execution of a writ of possession initially by initiating a bankruptcy proceeding. Therefore, timing is an essential element in determining whether a partition action is exempt from a bankruptcy proceeding. At Underwood Law Firm, our attorneys are more than familiar with bankruptcy proceedings and their impact on partition actions.

Code of Civil Procedure section 715.050

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What is an Accounting Action (CCP § 872.140)?

Published on: February 22, 2023 | By Underwood Law Firm, P.C.

2222023-300x300 An action for accounting is an equitable action seeking to determine the amount owed to the parties of an action when damages are uncertain. “An accounting is an equitable proceeding which is proper where there is an unliquidated and unascertained amount owing that cannot be determined without an examination of the debits and credits on the books to determine what is due and owing.” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1136-1137, 167 Cal.Rptr.3d 382.) Therefore, when asserting an accounting action, equitable principles apply.

In order to prevail on an accounting claim, a party must prove the existence of a relationship and that an uncertain balance is owed to the plaintiff, which requires an accounting. At the Underwood Law Firm, our attorneys are more than familiar with accounting actions.

Elements of an Accounting Action

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What is Adverse Possession (CCP § 323)

Published on: February 3, 2023 | By Underwood Law Firm, P.C.

Underwood-Blog-Images-1-300x300 In California, a person can claim title to a piece of real property that they are not a titleholder to through adverse possession. Adverse possession requires a person to be in use of a particular piece of real property for the required statutory period. An adverse possessor, however, does not become the titleholder of a piece of property merely by using the property. Certain elements are required for a claimant to acquire title through adverse possession. The requirements for adverse possession are codified in the California Code of Civil Procedure section 323.

Under section 325, subdivision (b), for an adverse possessor to gain title through adverse possession, the claimant must prove (1) possession under the claim of right or color of title; (2) actual, open, and notorious occupation of the premises which gives reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period. (CCP § 325(b).) At Underwood Law Firm, our attorneys are more than familiar with adverse possession and the elements required for gaining title through adverse possession.

Possession Under the Claim of Right/Color of Title

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What happens when a co-owner refuses to pay their share of the mortgage? ((Wallace v. Daley (1990) 220 Cal.App.3d 1028.)

Published on: February 1, 2023 | By Underwood Law Firm, P.C.

Underwood-Blog-Images-300x300
In California, cotenants are obligated to pay for their portion of common costs. A huge part of owning property jointly is “splitting the bill,” so to speak. From Property taxes to mortgage payments to utilities, the list goes on and on in terms of what all cotenants are responsible for. But that does not mean that each co-owner has to pay an equal share, or always does. And not every property-related expense is one which every cotenant must share in.

Perhaps due to all these various rules and unforeseen responsibilities, joint-ownership arrangements can often fall apart. All it takes is one delinquent mortgage payment to crater the credit scores of all parties involved. In these situations, a co-owner’s best option is a partition action where they can recover their share of overpayments. The Underwood Law Firm is familiar with these matters, and our team has the legal acumen and skills necessary to help you with the process.

What are common costs?

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