Code of Civil Procedure (CCP) Section 874.321.5 – Apportionment of the Costs of Partition

Section 874.321.5 is an important section of the California Partition Section as it gives the court authority to apportion the costs of partition among parties. This means the court can apportion costs arising from a partition suit like the appraisal fee. In the nature of partition, the court must keep apportionment equitable.

Code of Civil Procedure section 874.321.5 states:

In an action for partition of property, the court may apportion the costs of partition, including an appraisal fee, pursuant to Section 874.040, except that the court shall not apportion the costs of partition to any party that opposes the partition unless doing so is equitable and consistent with the purposes of this chapter.

This section of the statute was amended in 2022, and the new version made effective as of January 1, 2023. This amendment deleted “action for partition of heirs property” from the text of the statute, changing it to “action for partition of property.” This reflects the amendments of all the partition statutes to apply more widely to not just heirs’ property interests.

In Illinois, the partition statutes have a similar section, Illinois Revised Statutes, 1971, chapter 106, paragraph 68. This section states the court can apportion the costs among the parties in interest unless the defendants “interpose a good and substantial defense to the complaint.” This is like the California statute. If a party presented a defense or opposition to the lawsuit that was not in good faith the court will apportion costs accordingly. (Lane v. Budiselich (Ill. App. Ct. 1974) 17 Ill.App.3d 914, 916.)

Like Illinois, in Florida, if the court finds tactics of a party opposed to partition to be vexatious and of no benefit to the partition, the party will not be rewarded in regards to apportionment. (Daugharty v. Daugharty (Fla. Dist. Ct. App. 1983) 441 So.2d 1160, 1161–1162.)

In Massachusetts, the statute similarly provides that reasonable expenses should be paid by the party bringing the suit and contribution should be in proportion to the interest of the parties absent a more equitable proportion set by the court. (Aiello v. Aiello (Mass. App. Ct. 2005) 63 Mass.App.Ct. 914, 915.)

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).

The Act’s buyout provision is significantly different than the buyout provisions available in partition actions under the law of various states, including the three states that have buyout provisions that ostensibly made a buyout remedy available only to cotenants who were deemed to be nonpetitioning cotenants under those statutes. (Reforming Property Law, p. 51.)

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.)

Attorneys fees awards in thses cases most often are awarded under the common benefit doctrine, which is an exception ot the American rule on attorneys’ fees under which each party normally is responsible for paying his own attorneys’ fees. (see Reforming Property Law, p. 24.) Under this doctrine, parties may have to pay a portion of another party’s attorneys’ fees if the attorney for the toher party provided legal services in the litigation that the court deems inured to the benefit of those to be charged as well as to the party who employed the attorney. (Id.

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

For example, “Julie” brings suit for partition for a shared home with “Shawn.” Shawn opposes the partition and as such the court will not apportion any of the fees to Shawn. This means if it cost $100 to get the property appraised for it to be sold, Julie will pay the fee entirely. However, if Shawn had put up a defense in the lawsuit that was particularly aggressive to the point of being vexing, the court may apportion costs differently. If Shawn and his lawyer kept filing many annoying motions and requests to delay and upset Julie, the court might take issue with his defense tactics. In this type of situation, the court might split the appraisal fee between Julie and Shawn even though Shawn did not want the partition. This could also influence who pays whose attorney fees if those were included in the costs of the partition to be apportioned by the court.

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.