Code of Civil Procedure (CCP) Section 872.830 - Partial Division and Sale

The California Partition Law begins at Code of Civil Procedure section 872.010 and ends at Code of Civil Procedure section 874.323. Section 872.830 outlines a procedure where the court can order a partial division and sale of property in partition lawsuits. This statute is important because it gives parties another option for partition under certain unique circumstances.

Code of Civil Procedure section 872.830 states:

If, in making a determination whether sale would be more equitable than division of the property, the court finds that sale and division of proceeds for part of the property would be more equitable than division of the whole property, the court may order that such part be sold and the remainder divided.

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

“Shawn” and “Julie” are an unmarried couple who want to start living together. They decide to buy a large farmland with a residence. They purchase the land as joint tenants and move in together.

On the farmland, Shawn uses half of the land to grow oranges while Julie uses half of the land to grow berries. Their two halves are split by a road.

Unfortunately, Shawn and Julie’s relationship does not work out, 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, but Julie wants to keep the property. Shawn sues for partition by sale.

At trial, the court rules that partition by sale of the residence would be more equitable than partition in kind, since the residence cannot be practically divided. The court also concludes that selling residence and dividing the remaining farmland would be more equitable, since the remaining farmland can be equally divided. The court orders a partial division and sale accordingly.

1976 Addition

Section 872.830 makes explicit the authority of the court to order a partial division of the property and a sale and division of proceeds as to the remainder. Provisions of prior law in which such authority was implicit include Sections 763 and 770.

As is the case with many of the partition statutes, section 872.830 does not include a comment from the Legislature in its official capacity. This is the norm, however, 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 substantially in line with that of the Revision Commission.

Here, the comment makes mention of two former statutes that were repealed, but from which section 872.830 draws inspiration.

Former Section 770 was one of the repealed provisions where the authority to combine physical partition and partition by sale was implied, stating: “When a part of the property only is ordered to be sold, if there be an estate for life or years, in an undivided share of the whole property, such estate may be set off in any part of the property not ordered to be sold.”

Another repealed provision that implied this authority was former Section 763. The relevant part of this section 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. . .”

As such, the Commission’s recommendations helped the Legislature codify an implicit understanding into an explicit authority to modernize California’s partition laws.

As to how this statute plays out in practice, it is yet another tool available to the courts to ensure the most equitable result from the partition suit. Simply put, it “gives the trial court authority to order a partial division of the property and a sale of the remainder if it would be more equitable than a division of the whole.” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 754.)

Take the facts of Richmond, for instance. There, the property subject to partition was a 5,000 acre cattle ranch. Some parties wanted portions of the land, others wanted to receive distributions from a sale. The Court of Appeal held it proper for the lower court to issue successive interlocutory judgments dividing up some of the land to certain parties, and selling the rest.