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.
Thus, in the beginning, the plaintiff must join as defendants in the partition action all persons having or claiming interests of record or actually known to the plaintiff or who is reasonably apparent from an inspection of the property, in the property as to which a partition is sought. (CCP § 872.510.)
Although a plaintiff need not join someone on a lease in a partition action, the lawsuit should generally include anyone with a “lien,” such as a mortgage, deed of trust, or other security interest in the property. (CCP § 872.540.) A mortgage holder also has a right to intervene in the partition action if they are not originally named. (Towle Bros. Co. v. Quinn (1903) 141 Cal. 382, 385.)
One interesting problem arises when a party to be named is dead. If a person required to be joined as a defendant is dead, or the plaintiff—the person who is suing for partition—is believed to be dead, and there is no heir or personal representative, the partition law has specific requirements for what should be done next.
Specifically, Code of Civil Procedure section 872.530 requires
(a) the plaintiff to state that the title owner is dead,
(b) the plaintiff to join the dead person’s successors as a party, and
(c) the plaintiff can join all persons claiming under the dead person. These persons can be served by publication. (CCP § 872.540(b).)
Interest In The Property
After all persons with interest in the property—dead or alive—are joined in the partition action, then the court will determine the interests of all respective persons through an interlocutory judgment. (CCP § 872.720.) Once everyone is joined and the court determines the interests of all the respective parties, the Court is ready to take the next steps in the partition action, such as making arrangements for the property’s sale. All of those later steps, however, first require ensuring that all necessary parties are joined as described above.
If you find yourself contemplating a partition action, please contact the lawyers at Underwood Law Firm, P.C., for an initial consultation. Go here to get more details.
