Code of Civil Procedure (CCP) Section 874.010 – Costs Incurred in Partition Action

Code of Civil Procedure section 874.010 is one of the most important statutes in the law of partitions. It defines the “costs” of partition, which are to be ultimately split between the parties in accordance with their ownership interests under section 874.040. Crucially, attorney’s fees are considered costs, and are therefore recoverable to some extent.

Code of Civil Procedure section 874.010 states:

The costs of partition include:

1. Reasonable attorney’s fees incurred or paid by a party for the common benefit.
2. The fee and expenses of the referee.
3. The compensation provided by contract for services of a surveyor or other person employed by the referee in the action.
4. The reasonable costs of a title report procured pursuant to Section 872.220 with interest thereon at the legal rate from the time of payment or, if paid before commencement of the action, from the time of commencement of the action.
5. Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit.

“Shawn” and “Julie” are siblings who inherit property from their parents. Even though they own equal shares, Shawn treats the home as his own, and refuses to allow Julie onto the property. Fed up with being denied the benefits of the home, Julie sues for partition.

As part of this process, Julie procures a title report before the Complaint is filed. Later, when the Court allows the partition by sale to proceed, a partition referee is hired to prepare the home for listing on the open market. The referee also contracts with a contractor to fix up the roof so that the home will get a better sales price.

Eventually, the home is sold. Pursuant to section 874.010, half of Julie’s attorneys fees must be paid out of Shawn’s shares of the proceeds. Julie is also entitled to be reimbursed for half the cost of the title report. Additionally, the fees for the referee and the contractor come out of both parties’ shares of the sales proceeds.

This is because all of the above are considered “costs” of partition under section 874.010. And costs are to be evenly split by the parties to a partition action under section 874.040.

Law Revision Commission Comments (CCP § 874.040)

1976 Addition.

Section 874.010 is a statement of the “common benefit” rule applicable in partition actions. The listing in this section is illustrative only, and the costs of partition may include other expenses or disbursements, of a like or different kind, found by the court to have been incurred or paid for the common benefit. See subdivision (e). Section 874.010 is supplemented by Section 874.020 (costs incurred in related action).

Subdivision (a) continues the substance of a portion of former Section 796.

Subdivision (b) continues a portion of former Section 768. The reference in the former section to the fee allowed by the court “in its discretion” is not continued since the fee must be a “reasonable sum” pursuant to Section 1023. The expenses of the referee may include attorney’s fees where appropriate. See Section 873.120.

Subdivision (c) continues a portion of former Section 768.

Subdivision (d) continues the substance of a portion of former Section 799.

Subdivision (e) is new; it is derived from former Section 796.

Like with most of the partition statutes, section 874.010 does not include an “official” Assembly Committee Comment from the California Legislature. But this is fairly standard. And 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 essentially in line with that of the Revision Commission.

As to the comment and statute, this is one of the most important statutes for any litigant to take note of before beginning a partition case.

On its own, the statute simply provides for a definition of “costs.” But context is important. Under section 874.040, “the court shall apportion the costs of partition among the parties in proportion to their interests or make other such apportionments as may be equitable.

Returning to the statute at hand, this means that some attorney’s fees are recoverable in partition actions, which many litigants are concerned about when considering whether to actually commence litigation. And it usually doesn’t matter if the partition is contested, either.

Our Supreme Court has spoken on this issue directly, holding that under former section 796, the predecessor to the current partition cost statute, “counsel fees may be allowed … for services rendered for the common benefit even in contested partition suits.” (Capuccio v. Caire (1932) 215 Cal. 518, 528–529.)

Naturally, however, this also means that “fees incurred by a defendant to a partition action could be for the common benefit, and therefore allocable in part to the plaintiff, despite the fact that the defendant had “‘resisted partition.’” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967.)

Here at Underwood Law Firm, our knowledgeable attorneys are here to help navigate the complex web of case law and statutes surrounding partitions. If you are thinking of filing a partition, are already in the midst of a partition suit, or just have any questions, please do not hesitate to reach out to our office.