Code of Civil Procedure (CCP) Section 872.210 - Partition Plaintiffs

California Code of Civil Procedure section 872.210 defines the persons who are authorized to commence an action of partition. The section broadens the people who may attempt to bring a partition, while retaining a limitation on property held in community or quasi-community interest.

Code of Civil Procedure section 872.210 states

• (a) A partition action may be commenced and maintained by any of the following persons:
  • (1) A co-owner of personal property.
  • (2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.
• (b) Notwithstanding subdivision (a), an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.

(Added by Stats.1976. c. 73, p. 110, § 6)

For example, “Aubrey” inherited a life estate in a piece of land from his mother. When Aubrey was to die, his two children, “Brittany” and “Gianna” would inherit the parcel in full. Unfortunately, Brittany began experiencing financial issues and wanted to sell the property. Gianna refused on account of their father still living on the property. Nevertheless, Brittany sought a partition of the property under Code of Civil Procedure § 872.210.

Under the original partition statutes, such an action would not have been allowed, because Brittany has only a “future” interest in the property. Modernly, however, section 872.210 would permit Brittany to seek a partition, regardless of the fact that her father held a life estate in the property. Her request would not be automatically permitted, though, because partitions with future interests may only be allowed if it’s in the best interest of all parties to the property. The fact that the holder of the life estate, here, is still living on the property would likely render Brittany’s partition request to be struck down by the court.

1976 Comment

Subdivision (a) continues the first portion of former Section 752a relating to personal property. Subdivision (b) supersedes the first portion of former Section 752 relating to real property. Under subdivision (b), an owner may seek partition whether or not he is a joint tenant or a tenant in common. He may, for example, be a sole life tenant seeking partition as against the remaindermen or vice versa. It should be noted, however, that the right of partition as between concurrent interests is subject to the doctrine of waiver that the right of partition as between successive interest is allowed only if it is in the best interests of all the parties.

The provision formerly found in Section 752 for partition by a lienholder “on a parity with that on which the owner’s title is based,” is not continued. The provision was special legislation of extremely limited application and was an exception to the rule that only the holder of a substantial property interest is entitled to demand partition.

The official Assembly Committee Comment greatly expanded on the Law Revision Commission’s own comment under this statute. As section 872.210 virtually re-defined the ability of certain types of interest holder to seek a partition, it makes sense that the Legislature wanted to be thorough with its explanation. The Committee’s comment is presented, in full, below:

Subdivision (a) continues the first portion of former Section 752a relating to personal property. Under former law, successive estates in personal property were apparently subject to partition. See former Section 752a (law governing partition of realty applies to partition of personalty) and 4 L. Simes & A. Smith, The Law of Future Interests § 1777, at 108 n. 28 (2d ed. 1956). Subdivision (a)(1) continues the right to partition successive estates in personal property. See also Sections 872.020 (partition of personalty governed by provisions of partition statute) and 872.710(c) (right to partition successive estates in property). As to personal property held on an express trust, see Section 872.840.

Subdivision (a)(2) supersedes the first portion of former Section 752 relating to real property. The former provision, while covering many of the usual cases, was unduly restrictive. Under subdivision (a)(2), where property is owned by several persons, whether or not they are joint tenants or tenants in common, partition is available to sever their interests. Thus, subdivision (a)(2) permits partition of partnership property. It should be noted, however, that partition of partnership property is subject to the limitations of Section 872.730. Likewise, under subdivision (a)(2), where property is owned in successive estates, partition is available. Former law limited partition of such estates to actions by a life tenant against the remainderman. See Akagi v. Ishioka, 47 Cal.App.3d 426, 120 Cal.Rptr. 807 (1975). Subdivision (a)(2) removes any such limitations. It should be noted, however, that, unlike partition of concurrent interests which may be partitioned as of right (subject to the doctrine of waiver), partition of successive estates is permitted only if it is in the best interests of all the parties. See Section 872.710(c).

Subdivision (b) codifies the rule that community property is not subject to partition. See Jacquemart v. Jacquemart, 142 Cal.App.2d 794, 299 P.2d 281 (1956). Community, quasi-community, and quasi-marital property are subject to division under The Family Law Act. See Civil Code §§ 4452 (quasi-marital property) and 4800 (community and quasi-community property). It should be noted that subdivision (b) precludes only severance of the community interests of spouses; it does not preclude partition of other estates or interests in the property that may exist concurrently or successively with the community interests. Subdivision (b) promotes a policy to make the family law court the sole forum for resolution of disputes relating to marital property. One consequence of this policy is that community interests in property cannot be severed absent a dissolution proceeding or a proceeding for legal separation (which under Civil Code Section 4508 requires consent of both parties). Whether community interests in property should be severable during marriage without consent of both parties is an issue the California Law Revision Commission has not addressed; the Commission believes that this issue is more appropriately resolved within the context of The Family Law Act.

The provision formerly found in Section 752 for partition by a lienholder “on a parity with that on which the owner's title is based” is not continued by Section 872.210. The provision was special legislation of extremely limited application. See, e.g., Elbert, Ltd. v. Nolan, 32 Cal.2d 610, 197 P.2d 537 (1948); Elbert, Ltd. v. Clare, 40 Cal.2d 498, 254 P.2d 20 (1953). Moreover, it was an exception to the rule that only the holder of a substantial property interest is entitled to demand partition. In some cases, foreclosure of the lien will result in a tenancy in common relationship. See Elbert, Ltd. v. Nolan, supra. This act provides a one-year grace period for persons affected by the repeal of this provision.