If you co-own real estate with someone who won't agree to sell, a partition action may be your only path forward. California law gives every co-owner an absolute right to force a sale of jointly held property, and this guide walks through exactly how that process works.
Quick Answer: What Is a Partition Action?
A partition action is a court-ordered process where a co-owner of real estate forces a sale of the jointly owned property, even if the other owners object. It lets people who own property together take their share of the equity and go their separate ways, with the court dividing the proceeds according to each owner's interest.
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.
Partition actions are common in four different instances of joint ownership of real estate: (1) boyfriend/girlfriend; (2) brother/sister inherited property; (3) parent/child; and (4) joint investors in real estate. The Underwood Law Firm, P.C. has clients in all of these categories.
Is a Partition Action the Same as a Partition Lawsuit?
Yes. "Partition action" and "partition lawsuit" describe the exact same legal process and are used interchangeably by California courts and attorneys. Both terms refer to a lawsuit filed by a co-owner to divide or force the sale of jointly owned real estate.
You may also hear it called a "partition suit" or a "partition proceeding." Whatever the label, the underlying right and process under the Code of Civil Procedure are the same.
Who can Seek a Partition Action?
Under the law, any co-owner of real or personal property may bring an action for partition. (CCP § 872.210.) Additionally, a co-owner's ability to seek a partition is an absolute right. Code of Civil Procedure Section 872.710, subdivision (b), states that "partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver." Co-owners are entitled to this right even if the entire property is subject to a lien, such as a mortgage. (Gardiner v. Cord (1908) 145 Cal. 157, 164-165.) The same is true even if the property is subject to an easement or a lease. (see Anaheim Union Water Co. v. Ashcroft (1908) 153 Cal. 152.)
For example, a joint tenant or a tenant in common can file a partition lawsuit. An owner of a life estate can seek a partition of property, and one with a right to inherited property can seek a partition in the right cases. In many instances, persons who are part of partnerships can also seek a partition of partnership assets.
Can You Request Different Types of Partition Actions?
Yes. The code recognizes three types of partitions available to co-owners: (1) a partition in kind, (2) a partition by sale, and (3) a partition by appraisal. There are, however, restrictions on which type a co-owner may seek.
A partition in kind is the literal physical division of property in accordance with ownership interest, and it is the favored form of partition in the State. "Partition in kind is favored in the law, and in the absence of proof to the contrary, the presumption in favor of in kind division will prevail." (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365 (Butte Creek).) As an illustration, as it applies to a farm, this means that the court could determine that one owner of a farm could receive the north section of the farm while the other owner receives the south half of the farm. Obviously, a "partition in kind" is inappropriate for real estate, like a house.
As such, most cases are a "partition by sale" of the property, where the real estate is sold on Zillow, Redfin, or the MLS just like any sale of the property. As such, the idea is to get the highest value possible for the parties in the sale. In a partition by sale, the court appoints a partition referee or realtor to sell the property, and then the proceeds of the sale are held until a determination is made as to each party's credits and debits. The process of determining each party's credits and debits is known as an "accounting." Every partition action contains an accounting.
Last, a partition by appraisal occurs when the owners decide to get a real estate appraisal of the property, and one of them agrees to sell to the other at the appraised price multiplied by the share of their interest in the property. Restrictions also exist for seeking a partition by appraisal. This is because "the unambiguous language of the partition by appraisal statutory provisions… requires an agreement among the parties." (Cummings, 13 Cal.App.5th at 598.) Thus, a partition by appraisal is available only when everyone agrees to it.
For example, if a brother and sister jointly own inherited property from their parents, they might agree to a partition by appraisal. In that instance, they agree in advance that one of them would buy the other's interest at whatever the appraised price is determined to be. Then, they would hire a real estate appraiser who would determine the value of the property. After the appraiser makes his determination and gives the appraisal to the parties, they would arrange to make payments in accordance with the appraisal. In that instance, like everything, the devil is in the details, so it would be important to make sure that all the relevant points are agreed on in advance.
What are the Restrictions on a Co-Owner's Ability to Seek a Partition Action?
Even though the right to partition is recognized by the courts as "absolute," there are a few defenses that are well-known to experienced lawyers. Generally, these involve challenges to the plaintiff's title and one other major exception: a waiver. "It is well settled that in the absence of a waiver, a joint tenant is entitled as a matter of right to have his interest severed from that of his co-tenant." (Lee v. National Collection Agency, Inc. (N.D. Cal. 1982) 543 F.Supp. 920, 921.)
As an illustration, in Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, the Court found that a written agreement relating to the right of first refusal modified the absolute right to partition. Thus, in every partition action, it is important that an experienced partition lawyer make a determination as to the status of title, the nature of the parties' relationship, and have a discussion about whether the parties discussed a waiver, executed a waiver in writing, or otherwise agreed to waive the right to partition. As these issues can be technical and nuanced, a knowledgeable partition lawyer will generally know how to analyze legal documents and ask the right questions.
How Do You Stop a Partition Action?
Stopping a partition action generally comes down to two paths: reaching a deal with the other co-owner, or successfully challenging their legal right to partition in the first place. Both options are covered below.
Negotiating a Buyout or Settlement
The most common way to stop a partition action is for one co-owner to buy out the other's interest before the case reaches a court-ordered sale. A negotiated buyout, often based on an independent appraisal, lets everyone avoid the cost and delay of full litigation.
Challenging Title or Asserting a Waiver
If you can show the plaintiff doesn't actually hold valid title, or that the co-owners signed a valid written waiver of the right to partition, the court may deny or delay the action. These defenses are narrow and fact-specific, so they generally require an experienced partition attorney to evaluate.
What is the Process for Seeking a Partition Action?
Just because a co-owner has a right to partition does not mean achieving that result is an easy task for someone unfamiliar with the law. Like every lawsuit, a partition requirement must comply with the Code of Civil Procedure, the California Civil Code, the California Evidence Code, the California Rules of Court, and the "local rules" that are specific to the county where the real estate is located.
The first step in a partition action is filing a legally valid complaint, which must meet several technical legal requirements. Then, the parties must obtain an interlocutory judgment in the correct procedural manner. Next, the court must appoint a partition referee who is legally eligible for the position. Then, the court must determine the proper method of partitioning the property. The property must be sold by following all provisions for a partition sale. Finally, the proceeds of the sale must be distributed in strict compliance with the evidentiary code requirements for an accounting.
For example, in every partition action, there are numerous questions that arise as to what the parties intended by their actions, the best method of partition, an analysis of defenses, and the correct distribution of proceeds based on each party's contributions. As partition law goes back to the founding of the state, there is often substantial case law on many of these questions that should inform the process.
How Much Does a Partition Action Cost?
Partition action costs vary widely depending on whether the case is contested, but most cases involve court filing fees, appraisal costs, referee fees, and attorney's fees, which can range from a few thousand dollars for a straightforward, uncontested case to well into five figures for a heavily litigated one.
Importantly, these costs are typically paid out of the sale proceeds before distribution, and courts generally split them proportionally among the co-owners based on their ownership interest. A co-owner who unreasonably contests a clear-cut case may also be ordered to bear a larger share of the costs.
How Long Does a Partition Action Take?
An uncontested partition action generally takes around 6 to 12 months from filing to the final distribution of proceeds. Contested cases, particularly those involving disputed title, waiver defenses, or complex accounting issues, can take significantly longer, sometimes well over a year.
Court backlog in the county where the property sits, how quickly a referee can market and sell the property, and how cooperative the co-owners are throughout the process all affect the timeline.
Find a Partition Action Attorney Near You
Underwood Law Firm represents co-owners throughout California in partition actions, whether the property is in Northern California, Southern California, the Bay Area, or Los Angeles County.
Wherever your property is located, our attorneys can walk you through your options and what to expect.
How can the Attorneys at Underwood Law Firm, P.C. Assist You?
Partitions are fairly common in California, particularly among unmarried couples and business partners. The upside is obvious, as selling a co-owned property can prove to be an immediate monetary boon. But getting the ball rolling can be difficult, especially when faced with the prospect of dealing with lawyers and the court system.
Additional problems can also arise during litigation. Oral agreements between co-owners can impact title, mortgages can affect distributions, and lengthy accounting procedures can balloon litigation costs. As each case is unique, property owners would be well-served to seek experienced counsel familiar with the ins and outs of partitions.
At Underwood Law Firm, P.C., our knowledgeable attorneys are here to help. If you are concerned about facing a partition action, if you're interested in seeking one yourself, or if you just have questions, please do not hesitate to contact our office. Learn more about partition action billing.
FAQs
Common questions co-owners ask before filing or responding to a partition action:
Can a partition action be filed if the property has no mortgage? Yes. A partition action doesn't require any loan on the property. Any co-owner can seek partition whether the property is mortgage-free or heavily leveraged.
Does a partition action affect my credit score? Not directly. A partition action is a civil property dispute, not a debt collection matter, so it isn't reported to credit bureaus on its own.
Can partition actions be resolved through mediation instead of trial? Yes. Many partition disputes settle through mediation or negotiation, often resulting in a buyout, before the case ever reaches a full trial.
What happens to a partition action if a co-owner passes away during the case? The case generally continues with the deceased co-owner's estate or heirs substituted in as a party, since the property interest passes to them.
Can a partition action be filed on out-of-state property? No. California courts only have authority to partition real property located within California; out-of-state property must be handled under that state's laws.
Do all co-owners need to be served individually in a partition action? Yes. Every co-owner and anyone with a recorded interest in the property must be named in the lawsuit and formally served.
Can a partition action be dismissed voluntarily after filing? Yes, in some circumstances, such as when the co-owners reach a settlement, though court approval may be needed depending on the case's stage.
Is a partition referee the same as a mediator? No. A partition referee is a court-appointed neutral party who manages and executes the sale of the property, while a mediator helps facilitate a negotiated settlement.
