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Code of Civil Procedure (CCP) Section 873.230 – Allotment of Property Previously Conveyed to Purchaser
Code of Civil Procedure section 873.230 allows property conveyed to a buyer before the partition action to still be given to the purchaser. This statute is important as it allows previous agreements regarding the property to still be honored.
Code of Civil Procedure section 873.230 states
Where prior to the commencement of the action a party has executed a deed purporting to convey to a purchaser a portion of the property to be divided, 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 that portion to the purchaser, the purchaser's heirs or assigns, or such other action taken as to make the deed effectual as a conveyance of that portion of the property.
(Amended by Stats. 1976, c. 73, p. 110, § 6.)
What is an example?“Shawn” and “Julie” are an unmarried couple who decide to buy some land together. They pick out several acres of farmland that includes a house. Shawn and Julie purchase the land as tenants in common and move into the home together.
After some time, Julie decides to sell a part of her property to her dad, who wants to use the land to grow berries. Julie executes a deed conveying a part of her property to her dad.
Unfortunately, Shawn and Julie’s relationship does not work out, and the couple breaks up. They cannot agree on what to do with the property. Shawn wants to sell the property and move on, so he sues for partition by sale.
Eventually, the court orders the property to be partitioned in kind. Pursuant to CCP § 873.220, the court must honor Julie’s agreement with her dad to the extent that it is practical. The court carves out the part of Julie’s property she gave her dad and the court gives it to Julie’s dad in accordance with the grant deed.
Law Revision Commission Comments (CCP § 873.230)1976 Addition
Section 873.230 continues the substance of the fourth sentence of former Section 764. The provisions of this section apply only to transfers made prior to commencement of the action.
Assembly Committee CommentAs is the case with nearly every partition statute, section 873.230 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 the comment, it makes mention of former section 764. That former section stated in relevant part:
“Whenever it appears, in an action for partition of lands, that one or more of the tenants in common, being the owner of an undivided interest in the tract of land sought to be partitioned, has sold to another person a specific tract by metes and bounds out of the common land, and executed to the purchaser a deed of conveyance, purporting to convey the whole title to such specific tract to the purchaser in fee and in severalty, the land described in such deed shall be allotted and set apart in partition to such purchaser, his heirs or assigns, or in such other manner as shall make such deed effectual as a conveyance of the whole title to such segregated parcel, if such tract or tracts of land can be so allotted or set apart without material injury of the rights and interests of the other cotenants who may not have joined in such conveyance.”
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 effectuate prior purported conveyances is continued in Section 873.230.”
Section 764 is relevant here, too, because there aren’t any published decisions discussing or interpreting Section 873.230.
But a 1916 case discussing the relevant provisions of section 764 summed up the statute’s purpose as follows:“A suit in partition under our code is… equitable, and the court… will not only allot to a cotenant that part of the common land upon which he has valuable improvements, but will also set apart a specific tract to the share of a cotenant who has undertaken to convey the title in fee to such tract in severalty, so that the grantee may have that which is justly his.” (East Shore Co. v. Richmond B. Railway (1916) 172 Cal. 174, 177.)
