Code of Civil Procedure (CCP) Section 874.311 – Short Title; Application of Act

Code of Civil Procedure section 874.311 is a section of the partition statutes which establishes that the Partition of Real Property Act applies to actions for partition. Specifically, this section of the statute limits its application to real property held by tenants in common.

Code of Civil Procedure section 874.311 states:

1. This act shall be known, and may be cited, as the Partition of Real Property Act.
2. This act applies to real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.
3. This act applies to actions for partition of real property filed on or after January 1, 2023.

The Partition of Real Property Act was an outgrowth of a law review article titled Historic Partition Law Reform (2019) Texas A&M Legal Research Paper Series No. 19-27 by Thomas W. Mitchell (“Law Reform”). (see also Thomas W. Mitchell, Reforming Property Law to Address Devastating Land Loss, 66 Ala.L.Rev. 1, 9, 29 (2014).

As the paper notes, Heirs’ property ownership is technically a subset of tenancy-in-common ownership, which is the most common ownership of real property in the United States. Those who own a fractional interest in tenancy-in-common property do not own any particular “piece of the property” but instead own a fractional interest in the entire property, akin to how people own shares in a corporation, which explains why such property ownership often is referred to as undivided ownership. (see Law Reform p. 67.)

Heirs’ property typically results from property being transferred from one generation to another by intestate succession as a result of individuals who failed to make wills or to utilize other advisable estate planning techniques. (see Law Reform p. 67.) If two or more heirs of a decedent are entitled to receive an ownership interest in real property, these heirs will own the property under a tenancy in common as mandated by intestate succession laws throughout the country. (Id.) Unfortunately, heirs property ownership can be problematic for a number of reasons. (Id.)

Previously, advocates “overestimated the degree to which partition sales have been a source of black land loss.” (Thomas W. Mitchell, Destabilizing the Normalization of Rural Black Land Loss (“Destabilizing”), 2005 Wis. L. Rev. 557, 581 (2005); see Faith Rivers, Inequity in Equity (Temp.Po.&Civ.Rts.L.Rev. 2007) 1, 31 (“There is little empirical data documenting claims of African-American land loss” [due to partitions].) (“Inequity”).) Others have claimed that low will-making rates for African-Americans represent a present day manifestation of the ways in which African Americans after the conclusion of the Civil War were deprived of access to attorneys and even to basic information about estate planning, but this theory has not been verified in any meaningful way. (see Law Reform p. 68.)

Nevertheless, Partition law governs exit from tenancy-in-common ownership, and any tenant in common, irrespective of the size of his or her fractional interest can file a partition action. (see Law Reform, p. 68.) Therefore, a tenant in common who owns a 50-percent, 10-percent, 1 percent, or 1/100th percent interest can file a partition action and further can request a court to order a forced sale of the property. (Id.) This is just one aspect of partition law that is counterintuitive to many heirs’ property owners, many of whom assume that heirs’ property only can be sold if all of the cotenants consent to a sale. (Id.)

The Partition of Real Property Act seeks to address consequences of this type of property ownership, and which California adopted in 2022.

This section of the statute was amended in 2022. With this amendment, subheadings were added, and the scope of the statute was clarified. The statute originally read “This act shall be known, and may be cited, as the Uniform Partition of Heirs Property Act.” With the amendment the Partition of Real Property Act expanded the scope of the Uniform Partition Property Act. This allowed the statute to apply to any real property held in tenancy in common absent an agreement.

Similarly, to California partition law, the Iowa partition statutes apply to cotenants, however the analogous section of the Iowa statue is considerably longer and more detailed. The Iowa statute includes “all persons indispensable to the partition including an owner of an undivided interest and a holder of lien.” (Iowa Code Ann. § 651.5.)
Washington’s partition statutes also are more detailed. While the language more closely matches that of California (“When several persons hold and are in possession of real property as tenants in common”) the statute goes on to specify type of estates or interests and allows for partition by sale or partial sale as well as partition in kind. (Wash. Rev. Code Ann. § 7.52.010.)

For example, “Julie” and “Shawn” are former spouses who co-own a home. If they own this home as either tenants in common or joint tenants, the right to partition is available to them. If Julie and Shawn disagree about what will happen to their home following a divorce, either one of them can sue for partition. Either person can bring an action for partition as long as they did not have a recorded agreement preventing partition.

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.