Code of Civil Procedure (CCP) Section 872.610 - Partition Law Interests

Code of Civil Procedure section 872.610 allows the court to determine the ownership interests of the parties to a partition. The importance of this statute cannot be understated. Its broad wording actually allows for holders of equitable title to seek a partition, despite not having previously filed a quiet title or declaratory relief action.  

Code of Civil Procedure section 872.610 states:

The interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.

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

“Shawn” and “Julie” are an unmarried couple who decide to move in together. Shawn pays for the entire down payment on a home and puts the house in his name. They do not discuss how the ownership interest will be distributed. The couple then begin living together.

As they continue to live together on the property, they each contribute to the expenses and maintenance of the property. Furthermore, Julie pays for several improvements to the property, including a new garage and basement.

Unfortunately, the couple’s relationship deteriorates, and they break up. They cannot come to an agreement on what to do with the property. Shawn wants to sell the property and move on with his life, so he sues Julie for partition by sale.

While the interests of the parties are in question, Julie asserts that her contributions to the property should give her at least a fifty percent interest in the property. Shawn contends that Julie’s contributions, at the very maximum, would give her a twenty-five percent interest.

Under CCP § 872.610, the trial court can determine their interests in the property. After a determination of their interests, if the property is sold, then the court will distribute the sale proceeds according to those determined interests.

1976 Addition

Section 872.610 continues the substance of the first portion of former Section 759. The section makes clear that the court may resolve any title disputes in the course of the proceeding where placed in issue by answer of a defendant or cross-defendant. See Section 872.410 (answer).

The Assembly Committee comment to Section 872.530 is a simple word-for-word reiteration the Revision Commission comment above. As with all the partition statutes, this is because the Legislature endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

In fact, the introduction to Assembly Bill 1671 (the bill that contained the new partition laws) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” This demonstrates that the intent of the Legislature was substantially in line with that of the Revision Commission.

Nonetheless, the Legislature points to former section 759 as the basis for the substance of Section 872.610, signaling that cases interpreting section 759 are still applicable despite the amendments to the partition statutes.

Former section 759 stated:

“The rights of the several parties, plaintiff as well as defendant, may be put in issue, tried, and determined in such action; and when a sale of the premises is necessary, the title must be ascertained by proof to the satisfaction of the court before the sale can be ordered; except that where there are several unknown persons having an interest in the property, their rights may be considered together in the action, and not as between themselves.” (Id.)

Obviously, the new statute is much shorter, opting to keep only the first portion of section 759. But the reason for this is that the Revision Commission recommended simply splitting the former statute into three pieces.

In the Revision report, the Commission stated that the portion of former Section 759 that required ascertainment of title in case of a sale of the property is superseded by Section 872.620, requiring ascertainment of title generally to the extent necessary to grant appropriate relief. And the portion that permitted consideration of the rights of unknown persons together was continued in Section 872.640.

With section 759 split up, the Legislature provided a great amount of clarity to the partition statutes. That said, 872.610 is not simply the product of an effort to make partition more approachable. It has importance all on its own.

It isn’t uncommon, especially among family relationships, for one party to put title in their name despite contributions from various other members. The downside to this arrangement is that if the non-titled members seek a partition, they face a major obstacle in that they are not record title holders. Section 872.610 can allow for their claim to go through, though it will be incredibly difficult for them to succeed.

This is because under former section 759, “the owner of the equitable title to an undivided interest in land may sue to establish his right, and to obtain partition of the common estate.” (Buhrmeister v. Buhrmeister (1909) 10 Cal.App. 392, 395-396.)