Code of Civil Procedure (CCP) Section 874.313 - Applicability; Relation to Other Laws

Code of Civil Procedure section 874.313 is an important partition statute that states property will be partitioned under this section unless all of cotenants otherwise agree. This statute ensures the partition statutes application to partition actions of all jointly-owned property held in tenancy in common.

Code of Civil Procedure section 874.313 states:

1. In an action to partition real property, the property shall be partitioned under this chapter unless all of the cotenants otherwise agree in a record.
2. This chapter supplements the other provisions of this title and, if an action is governed by this chapter, this chapter shall control over any provisions of this title that are inconsistent with this chapter.

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).

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.)

The Act represents the most comprehensive reform of partition law since the 1800s when partition law was substantially reformed to allow the partition by sale remedy for the first time. (see Law Reform, p. 72.) Prior to these reforms that first occurred in some States in the early 1800s and which were then adapted in other States at different times throughout the century, judges overseeing partition actions were very constrained in how they could resolve a partition action. Normally, they only either could order the remedy of partition in kind or they could refuse to order any remedy, thereby maintaining the property ownership as it had been before the action was filed. (see Law Reform, p. 72.)

Prior to the ULC’s finalizing its work on drafting the Act, there was near consensus among most lawyers and law professors who were familiar with partition law that any proposals to reform partition law in ways designed to benefit heirs’ property owners stood little chance of becoming law. IN part, the skepticism was based upon a general sense that the power of inertia and tradition simply were too strong. (see Law Reform, p. 75.) The near consensus viewpoint appeared to be validated by the decades-long record of frustrated attempts to reform partition law in significant ways in various Southern States. (Id.) Even fewer people believed that the Act would be well received by any southern State given the many previous attempts in the South to reform partition law in any comprehensive way. (Id.)

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

The statute was amended once in 2022 to separate the section into two subparts (a) and (b) as stated above. The legislature removed the clause: “This act applies to partition actions filed on or after January 1, 2022” as well as removing a section in subsection (a). The section prior to the amendment also included a clause about heirs’ property. It originally read: “In an action to partition real property under this title, the court shall determine whether the property is heirs property. If the court determines that the property is heirs property, property, the property shall be partitioned under this chapter unless all of the cotenants otherwise agree in a record.” It was shortened and no longer includes the heir language following 2022.

For example, “Shawn” and “Julie” have divorced. They own a single-family home as joint tenants, but Shawn now wishes to partition it by sale following the breakdown in their relationship. Julie was hoping to keep the house if they reconciled but Shawn wishes to move on and leave the state. Shawn sues for partition. The partition action would be governed by the partition statues.

Other states share a similar understanding that partition is a right absent an agreement otherwise. Texas appellate courts have taken the position that there can be an express or implied agreement not to partition. (Dimock v. Kadane (2003) 100 S.W.3d 608, 611.) Similarly, the Supreme Court of North Carolina has held it possible for a party to waive the right to partition for a reasonable time by express or implied contract. (Kayann Properties, Inc. v. Cox (1966) 268 N.C. 14, 19-20.) This understanding is reflected in the California statute as well as in the California appellate courts. In California, a party can waive the right to partition through an express or implied agreement. (Thomas v. Witte (1963) 214 Cal.App.2d 322, 327.)

For example, Shawn and Julie upon buying the house, thought their marriage would last and agreed not to partition it in the deed (or some other recorded agreement). When Shawn sued for partition, section 874.313 would prevent a partition if that agreement was mutual and valid. However, if Shawn (or Julie) had pressured the other into the agreement the partition sale would proceed unhindered by the exception.

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.