Code of Civil Procedure (CCP) section 872.810 - Property Division in Accordance with Interests

Code of Civil Procedure section 872.810 requires the court to divide the property according to the parties’ ownership interests. The hidden prerequisite to this statute kicking in is that the court order partition by physical division. If it does so, however, then the division must reflect the respective ownership interests of the parties.  

Code of Civil Procedure section 872.810 states:

The court shall order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment.

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

“Shawn” and “Julie” are an unmarried couple who decide to buy a large ranch together. They purchase a nice home and begin living together. For the initial purchase, Shawn pays the entire down payment amount. They also take out a mortgage on the house.

Shawn and Julie do not make a written agreement on how the ownership interests will be split. For expenses and costs, Shawn pays for the mortgage payments while Julie pays all the other expenses. Julie also makes several contributions towards the property.  

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

At trial, the court examines the evidence to determine the parties’ respective ownership interests in the property. The court concludes that Shawn owns a seventy-five percent interest and Julie owns a twenty-five percent interest. But the court issues an interlocutory judgment for partition by division, instead of sale. Pursuant to CCP § 872.810, the physical division must result in a seventy-five percent distribution to Shawn with a twenty-five percent division to Julie.

In other words, it would be in error for the court to split the ranch down the middle when Shawn is entitled to seventy-five percent of the property based on his ownership interest.

1976 Addition

Section 872.810 continues the preference of prior law for partition by division in kind. See former Sections 763, 752 (real property), 752a (personal property). In an appropriate case, the court may order partition by sale (Section 872.820) or appraisal (Chapter 7 (commencing with Section 873.910)).

It should be noted that the provision formerly found in Section 763 for division where the site of an incorporated town or city is included within the exterior boundaries of property has not been continued because it is obsolete.

Like with many of the partition statutes, section 872.730 does not include a comment from the Legislature in its official capacity. But this is mainly because the Legislature essentially 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 basically in line with that of the Revision Commission.

As to the comment, Section 872.810 instructs the court to divide the property according to the parties’ respective ownership interests. Previous law expressed a preference for partition in kind, which section 872.810 continued.

Former section 763 stated:

“If it appears by the evidence, whether alleged in the complaint or not, that the property or any part of it is so situated that partition cannot be made without great prejudice to the owners, or where property is subject to a life estate and the remainder is a contingent remainder, the court may and in the latter case must order the sale thereof; otherwise, upon the requisite proofs being made it must order a partition according to the respective rights of the parties as ascertained by the court . . .”

The Commission recommended for section 763 to be split up into multiple provisions, writing in relevant part:

“The portion of former Section 763 providing for partition "according to the respective rights of the parties" on "requisite proofs being made" is superseded by Section 872.710. The portion of former Section 763 providing for division of property in partition as a general rule is continued in Section 872.810. The portion that provided for sale of the property if division could not be made without great prejudice is superseded by Section 872.820, providing for sale where sale would be more equitable than division. The portion of former Section 763 that required sale of the property in case of a life estate with contingent remainder is not continued; the general provisions governing manner of partition control. See Article 3 (commencing with Section 872.810) of Chapter 3 of Title 10.5 of Part 2 of the Code of Civil Procedure.”

Despite all of the above, in practice, this statute has somewhat faded in relevance. And that is because physical partitions are simply rare in the modern real estate landscape. Even back in 1982, the Courts of Appeal recognized a growing shift towards partitions by sale as supposed to those in kind.

“In many modern transactions, sale of the property is preferable to physical division since the value of the divided parcels frequently will not equal the value of the whole parcel before division. Moreover, physical division may be impossible due to zoning restrictions or may be highly impractical, particularly in the case of urban property.” (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365.)