Code of Civil Procedure (CCP) Section 874.020 – Costs Incurred in Related Action

Code of Civil Procedure section 874.020 is designed to supplement section 874.010 regarding costs incurred in partition actions. The “costs” of a partition, and related actions, is important because they can be effectively reimbursed when the subject property is eventually sold, from the sales proceeds themselves.

Code of Civil Procedure section 874.020 states:

The costs of partition include reasonable expenses, including attorney’s fees, necessarily incurred by a party for the common benefit in prosecuting or defending other actions or other proceedings for the protection, confirmation, or perfection of title, setting the boundaries, or making a survey of the property, with interest thereon at the legal rate from the time of making the expenditures.

“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.

In addition, Shawn files a cross-complaint for quiet title.

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.

However, Shawn must also be reimbursed. When he filed his quiet title action, he was “prosecuting” an action for the “perfection of title,” under section 874.020. Thus, as only a 50% owner of the property, Shawn was responsible for only 50% of the costs associated with the quiet title lawsuit.

All of the above are considered “costs” of partition under section 874.010 and 874.020. And costs are to be evenly split by the parties to a partition action under section 874.040.

Law Revision Commission Comments (CCP § 874.020)

1976 Addition.

Section 874.020 supplements Section 874.010 (costs incurred in partition action). It is derived from a portion of former Section 798. The requirement of the former section that the expenses be pleaded is eliminated; the expenses are presented and allowed just as other costs in the action. The exclusion of recovery of attorney’s fees found in the former section is likewise eliminated.

As is the case for many of the partition statutes, section 874.010 does not include an “official” Assembly Committee Comment from the California Legislature. But this is the norm. 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, they point out that section 874.020 is a supplementary statute designed to add additional recoverable “costs” in partition actions.

On their own, both section 874.010 and 874.020 merely define “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 statutes 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.)

And as section 874.020 makes clear, a defendant’s cross-complaint for actions related to a partition, such as an action for quiet title, are also recoverable.

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.