partition lawsuit Archives

What is a Partition Action? (Code of Civil Procedure § 872.210)

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

What is a Partition Action?

A partition action is a court-ordered process where a property owner forces a sale of jointly owned real estate. Essentially, a partition action exists to allow people who own real estate together to take their share of the equity and go their separate ways. But, as simple as this seems, partition actions can often become complex lawsuits. Disputes commonly arise as to what type of partition may be sought and the process for determining ownership interests.

For example, “Julie” bought a house with her boyfriend, “Shawn,” thinking that they would get married one day. Later, after they had bought the house, Julie realized that her boyfriend was not the right person for her. Because Julie wanted to move on in her life, she also wanted to sell the house she bought with her boyfriend. Her boyfriend, however, was mad at Julie for breaking up with him and so refused to agree to sell the house. Because they were not married, Julie could not go to a divorce lawyer, and because they both did not agree to sell, a realtor could not help Julie. Julie felt trapped. Julie then, however, found a partition lawyer and was able to get the house sold so she could move on with her life. A partition lawyer got the job done.

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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 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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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. Partition receivers and partition referees serve very similar roles in partition lawsuits. 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. Read on to find out the important differences between the two.

What is a receiver?

A receiver, on occasion, assists the co-owners of the property, and the court in achieving a successful sale or appraisal for the property is partitioned. Receivers are court-appointed in California that oversees actions such as business disputes, divorce cases, judgment collection, and of course, real estate partition cases.

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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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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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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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