Code of Civil Procedure (CCP) Section 874.314 - Method of Service; Notice by Publication

Code of Civil Procedure section 874.314 is another incredibly important partition statute that addresses service of a partition complaint by publication. This statute ensures proper notice to the parties to the partition action if they cannot be served directly and notice that the property is the subject of the action.

Code of Civil Procedure section 874.314 states:

1. This act does not limit or affect the method by which service of a complaint in a partition action may be made.
2. If the plaintiff in a partition action seeks an order of notice by publication, the plaintiff, not later than 10 days after the court's determination, shall post and maintain while the action is pending a conspicuous sign on the property that is the subject of the action. The sign shall state that the action has commenced and identify the name and address of the court and the common designation by which the property is known. The court may require the plaintiff to publish on the sign the name of the plaintiff and the known defendants.

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).

Overall, the ULC has had a poor record of being able to convince States to enact its uniform real property acts into law. (see Law Reform, p. 76.) As one law professor has stated, if the measure for success for particular categories of uniform acts is the number of jurisdictions that have enacted those acts into law, “a critic could pronounce the National Conference’s efforts in the real estate area as a failure for the most part.” To this end, the median number of State enactsments for the 38 uniform real property acts that the ULC has promulgated in its 127-year history is just one. (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.)

Given the low median number of enactments, it is surprising that several uniform real property acts have failed to be enacted into law in even one jurisdiction. (see Law Reform, p. 76.) Examples include the Uniform Home Foreclosure Procedures Act, the Uniform Manufactured Housing Act, and the Uniform Nonjudicial Foreclosure Act. Other uniform real property acts such as the Uniform Assignment of Rents Act and the Uniform Residential Mortgage Satisfaction Act have been enacted into law in a half dozen jurisdictions at the most. (see Law Reform, p. 76.) With few exceptions, the most successful uniform real property acts have been enacted into law in no more than 10 to 20 jurisdictions. (Id.)

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

In 2022, the section was amended to remove a portion from subsection (b): If the plaintiff in a partition action seeks an order of notice by [publication and the court determines that the property may be heirs property,] publication, the plaintiff, not later than 10 days after the court's determination, shall post and maintain while the action is pending a conspicuous sign on the property that is the subject of the action. (Removed portion in brackets)

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.

Under section 874.314 Shawn must give proper notice of the partition action to Julie because she has an interest in the property.

Other states have similar notice requirements as the CCP is derived from the Uniform Partition of Heirs Property Act which had the intent of creating uniformity among state statutes. The Supreme Court of Illinois has held people holding mortgages or liens to the property must be made parties to the partition action. (Mansfield v. Wallace (1905) 217 Ill. 610, 625-646.) Otherwise, this can conceal title and prevent people from making informed bids if the partition is done through a public sale. (Id.) Pennsylvania’s supreme court has held similarly that in order to have jurisdiction over the parties they must receive notice of the partition claim. (Thompson v. Sitt (1868) 56 Pa. 156, 160.) However, only those with interest must be notified. (Id.) For example, if Julie’s name was not on the title and Shawn and Shawn’s friend actually owned the property she would not need to be notified.

While California does not specify the method by which a party must be served, the statute reflects the primary intent of informing parties of an ongoing action where their property interests are in dispute.

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.