Code of Civil Procedure (CCP) Section 873.220 – Allotment of Improvements

Code of Civil Procedure section

873.220 requires the property to be divided to give any part with improvements to the party that made the improvements. This statute is important because it allows a party who invested in improving the property to keep those benefits.

Code of Civil Procedure section 873.220 states

As far as practical, and to the extent it can be done without material injury to the rights of the other parties, the property shall be so divided as to allot to a party any portion that embraces improvements made by that party or that party's predecessor in interest. In such division and allotment, the value of such improvements shall be excluded.

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

“Shawn” and “Julie” are an unmarried couple who inherit a farm from Shawn’s dad. Sean executes a quitclaim deed to both himself and Julie so that they are each 50% owners.

The farm is largely unimproved. Shawn, though, sees an opportunity for investment and so pays out of his own pocket for new fencing and new soil. He also pays for a new septic tank renovated gas lines to the property, and for a house to be installed on the property. Eventually, Shawn and Julie split up. Julie then sues Shawn for partition.

Because the farm is so large, the court finds a partition in kind to be equitable. Sean and Julie must ultimately receive 50% of the property, but this doesn’t mean that the property needs to be split down the middle. Instead, the court can award a smaller plot to Shawn that includes the house as a fixture, along with the septic tank.

Even if Julie winds up with 75% of the acreage, Shawn will receive the portion of the land with the improvements that, on its own, constitutes 50% of the value of the property because of those improvements.

1976 Addition

Section 873.220 continues the substance of the last sentence of former Section 764.

This codifies the common law doctrine. See, e.g., Seale v. Soto, 35 Cal. 102 (1868). In the case of sale rather than division of the property, California case law applies a comparable rule. See, e.g., Ventra v. Tiscornia, 23 Cal.App. 598, 138 P. 954 (1913); Mercola v. Chester, 97 Cal.App.2d 140, 217 P.2d 32 (1950).

As is the case with nearly every partition statute, section 873.220 does not include a an “official” Assembly Committee Comment from the California Legislature. But this is normal. That’s 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 comment, it makes reference to a former statute and several cases that Section 873.220 is designed to codify. First up is former section 764. Former section 764 stated in relevant part:

“In all cases it is the duty of the referees, in making partition of land, to allot the share of each of the parties owning an interest in the whole or in any part of the premises sought to be partitioned, and to locate the share of each cotenant, so as to embrace as far as practicable the improvements made by such cotenant upon the property, and the value of the improvements made by the tenants in common must be excluded from the valuation in making the allotments, and the land must be valued without regard to such improvements, in case the same can be done without material injury to the rights and interests of the other tenants in common owning such land.”

Commenting on section 764 the Commission stated, in relevant part:

“The portion of former Section 764 that provided for division in such a manner as to allocate improvements to the parties making the improvements is continued in Section 873.220.”

As to the cases cited, the most recent of them is Mercola v. Chester (1950) 97 Cal.App.2d 140. Interestingly enough, this case does not concern a partition by division. Nonetheless, in Mercola, the plaintiffs built a house on co-owned land.

The court noted that it would be inequitable for the land to be sold and for the defendant to recoup sums of cash when he had never made any investment into the land, unlike the plaintiffs.

In so holding, the court noted, “even though one cotenant does not consent to the making of the improvement, since an action for partition is essentially equitable in its nature, a court of equity is required to take into account the improvements which another cotenant, at his own cost in good faith, placed on the property which enhanced its value and to award such cost to him.” (Id. at 143.)

While the case was for partition by sale, it is this portion of the opinion that Section 873.220 is attempting to codify. If a cotenant makes improvements to the land, then they should be awarded that portion of the land with those improvements if its feasible to do so.

Regarding sales, the authority above has been codified elsewhere. (see CCP § 872.140.) Because the court will account for compensatory adjustments in every partition, where the property is sold, a cotenant’s improvements are recouped to them via the sales proceeds, to ensure that they receive their fair share, having made the improvements in good faith.