Code of Civil Procedure (CCP) Section 873.110 - Services of Third Persons

Code of Civil Procedure section 873.110 gives the court authority over third parties who work for the partition referee. This statue is important because it expressly allows the referee to contract work out to third parties during the court of marketing and selling the property.

Code of Civil Procedure section 873.110 states

Subject to the limitations of this article, the court may:

(a) Authorize or approve contracts of the referee for the services and expenses of surveyors, engineers, appraisers, attorneys, real estate brokers, auctioneers, and others.

(b) Allow and direct payment of or reject claims under such contracts.

(c) Provide for the date of commencement of any lien provided by law or contract for such claims.

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

“Shawn” and “Julie” are an unmarried couple. They decide to buy a home as joint tenants and move in together. The home is in a rural area, and the only way to access the property is a winding road.

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

Eventually, the court orders the property to be sold and the sale proceeds distributed. The court also appoints the referee to oversee the partition. To put the property on the market, the referee wants to hire surveyors, engineers, appraisers, and real estate brokers. The referee finds several of these people he wants to hire and reports this to the court.

Pursuant to CCP § 873.110, the court looks over and approves the contracts that the referee drew up with the people he wanted to hire. The court also directs payment under these contracts.

1976 Addition

Section 873.110 is new. It recognizes that the court is the supervising entity in carrying out the partition. It removes from the referee, acting alone, the authority to engage the services of third persons for his assistance. It contemplates that the court will authorize or approve contracts of the referees for third-party services and expenses, allow or reject claims thereunder, and in proper cases specify the priority of any lien therefor. See Section 874.120 (lien for costs).

Former Sections 764 and 768 provided only for employment by the referee of surveyors and necessary assistants and allowance of their fees and expenses. For particular provisions relating to employment of third persons, see Sections 873.120 to 873.140.

Section 873.110 is intended to vest the court with broad discretion to approve contracts for services and with the corresponding duty to provide adequate lien protection for persons who render such services. Surveying services, for example, may involve substantial sums. Ability to obtain such services may depend upon assurance of, or security for, payment despite any later settlement by the parties and dismissal of the action.

Similarly, in a particular case, employment of a real estate broker by the referee may be desirable. Under Section 873.110, such employment may be authorized or approved and the terms of the contract prescribed or approved by the court. For the court's authority to fix agents' commissions on a sale, see Section 873.745.

As is the case for most of the partition statutes, section 873.110 does not include a an “official” Assembly Committee Comment from the California Legislature. But 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.

As to the comment, it mentions that it supersedes former section 764. Section 764 stated in relevant part: “In making partition, the referees must divide the property. . . and may employ a surveyor with the necessary assistants to aid them.”

Section 873.110 also superseded section 768, which stated in relevant part:

“The expenses of the referees, including those of a surveyor and his assistants, when employed, must be ascertained and allowed by the Court, and the amount thereof, together with the fees allowed by the Court, in its discretion, to the referees, must be apportioned among the different parties to the action, equitably.”

As the comment points out, these previous versions of the statute were unnecessarily restrictive in that they restricted the referee to hiring surveyors and assistants. But modernly, proper marketing may require the services of others.

For instance, in a federal case, Kamb v. United States Coast Guard (N.D. Cal. 1994) 869 F.Supp.793, a referee was hired to market and sell the property. The property itself was a former gun-range, and so it was necessary for the referee to seek the services of a consulting firm that performed soil analysis. When the firm relayed that the soil was contaminated with lead from shell casings, the referee had to contract with another consulting firm to do scientific tests and further evaluation of the soil. Finally, the referee then needed to contract with yet another firm to conduct a site cleanup.

None of these services the referee contracted with were surveyors, illustrating that in certain cases, the referee needs to contract with specialty companies to perform specific functions.