Daly City Partition Lawyers

Daly City is the second most populous city in San Mateo County, California. Daly City is known as the “Gateway to the Peninsula," and is a great place to live. An important part of home buying is financing, and sometimes it is difficult to get approved for a large loan, and then they find a co-owner, like a friend, a family member or boyfriend/girlfriend to help them buy the house. Life can be unpredictable and when one person wants to go on separate way and sell the house, but other person doesn’t want to sell the house they have to file for a partition. Daly City Partition Lawyer usually find partition actions to be the best remedy for joint owners in disputes in four broad categories:

• Parent-Child shared tenants in common in real estate; 
• Brother-Sister shared tenants in common in real estate; 
• Investor-Investor shared tenants in common in real estate; and 
• Significant others shared tenants in common in real estate;

A partition action is a lawsuit brought by a property owner seeking the court to force the sale of a jointly owned piece of real property. Typically, partition actions occur when co-owners of real estate have disputes about its ownership and use, and one of them seeks to end their ownership interest. That is, a partition action has no other purpose than to sever the unity of possession between cotenants in a piece of real property. (Rancho Santa Margarita v. Vail  (1938) 11 Cal.2d 501, 539.) Currently, partition actions are governed by the provisions set forth in the Code of Civil Procedure section 872.010. These statutes set out a general process by which a property may be partitioned. 

Historically, the term "partition" comes from the basic word to break into "parts" as in physically dividing real estate in half. For example, if two siblings inherited ten acres of farmland, the property could historically be divided into five acres a piece for each of them. As most people now live in single-family homes, which cannot simply be "split in half," courts will instead order that the property be sold and the proceeds, or equity, be "split in half." The best Daly City Partition Lawyer will be able to share information on this process with you.

Generally, a partition action has four stages, which include (1) the filing of the lawsuit (2) an appraisal of the Property under the Partition of Real Property Act, (3) the determination of the parties’ interests, and appointment of a referee to sell the property, and (4) the division of the proceeds from the sale.

In California partition actions, the court must enter an interlocutory judgment where the court finds that the Plaintiff in a partition action is entitled to a partition. (CCP § 872.720.) The interlocutory judgment “determines the interests of the parties in the property and, unless it is to be later determined, the manner of partition.” (CCP § 872.720.) A top Daly City Partition lawyer will be familiar with the process.

Code of Civil Procedure, section 874.010 states that “[t]he costs of partition include: (a) [r]easonable attorney’s fees incurred or paid by a party for the common benefit.” 

Interestingly, the costs of partition can also include reasonable expenses necessarily incurred by a party for the common benefit in prosecuting or defending other actions or proceedings for the protection, confirmation, or perfection of title, setting the boundaries, or making a survey of the property. (CCP § 874.020.) 

That attorney’s fees are considered “costs” associated with a partition action is important because Section 874.040 goes on to state the “court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” A knowledgeable Daly City Partition Attorney will be able to give you good advice on these issues.

Code of Civil Procedure section 874.140 states that the “court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustments among the parties according to the principles of equity.” 

The court in Hunter v. Schultz (1966) 240 Cal.App.2d 24 stated that the payments for interest, taxes, and insurance made by any co-tenant could be subject to reimbursement. These claims for reimbursement are commonly known as “offsets” in a partition action. 

Further, the court under Milian v. De Leon (1986) 181 Cal.App.3d 1185, announced that a co-tenant who expends money for the preservation of the property, or with the [acceptance] of their co-tenant(s), is entitled to reimbursement for those expenditures before the division of the proceeds among the property owners. 

That is, the general rule is that compensatory adjustments are appropriate for improvements that enhance the value of the property for all owners’ benefit. (see Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036.) An experienced Daly City Partition Attorney will be intimately familiar with these matters.

Each cotenant has a right to occupy their property, lease the property out and collect rent, and develop the property as they see fit. The fundamental rule is that each cotenant has a right to occupy the whole of the property. (Jacobs v. Scobie (1939) 12 Cal.2d 618, 623.) Additionally, any rental income must be shared among the cotenants. When a cotenant dispossesses or excludes another cotenant, that cotenant has committed an ouster. The following paragraphs discuss how a court determines whether an ouster has been committed in Barbaccia v. GBR Magic Sand MHP, LLC (2023) 2022 WL 17729105

In Barbaccia , Lou Barbaccia, and Josephine and Catherine Pecoraro, referred to as the Loubar plaintiffs, filed suit against GBR and Cy Barbaccia seeking mesne profits as damages for three parcels of real property consisting of Parcels One, Three, and Eight, and for declaratory relief. GBR filed a cross-complaint seeking declaratory relief to allow it to occupy the entire property and continue its operations. Lou, Cy, and Josephine were siblings. Catherine was their niece. The trial court held for the Loubar plaintiffs, finding that GBR failed to comply with a prior judgment directing it to relinquish possession of the Loubar plaintiffs’ one-half interest in the Property when it renewed leases without the Loubar plaintiffs’ notice, without listing them as co-landlords, without their consent, and without mentioning their possessory interest in the Property. GBR appealed.

Prior to filing this suit, Cy and Lou held a one-half interest in the Property, while their parents held the other one-half interest. Cy and Lou formed a partnership which held their one-half interest in the Property. In 1963, their parents agreed to lease their one-half interest to Cy and Lou for 98 years. Cy and Lou then built a mobile home park on the Property. When their parents passed, the family received their parents share. Cy and Lou’s partnership had ended and after various transactions and lawsuits, the Loubar plaintiffs held the parents’ one-half interest. Loubar LLC, which was Lou’s business entity, held the one-half interest originally owned by Cy and Lou. GBR Magic Sands MHP, LLC, which was Cy’s business entity, held the right to lease the Loubar plaintiffs’ one-half interest under the 1963 lease. In 2010, the Loubar plaintiffs filed an action to partition the Property. The trial court entered an order confirming the sale to the Loubar plaintiffs who submitted a successful bid on the Property. Also in 2010, the Loubar plaintiffs filed an action called the Pecoraro action, to cancel the 1963 lease and quiet title to the parents’ original one-half interest in the Property. The trial court there held that Cy had obtained the 1963 lease through undue influence and entered a judgment cancelling the lease, quieting title in favor of the Loubar plaintiffs, and ordering GBR to forfeit its possession of the one-half interest originally owned by the parents. However, GBR failed to relinquish its possession of the property, continued its mobile home park operation, and leased the mobile home lots to other tenants. The Loubar plaintiffs then brought this action.

The trial court rejected GBR’s defenses found in favor of the Loubar plaintiffs on all of their causes of action and awarded them over $5 million in damages. The trial court held that the Pecoraro judgment barred GBR from contending that it had a right to possess the Loubar plaintiffs’ one-half interest under the 2007 leases or the 2010 partition order. The trial court held that claim preclusion did not bar the Loubar plaintiffs from seeking damages for GBR’s possession of the Property after the Pecoraro judgment “because the complained about conduct GBR as well as the damages sought arose after the effective date” of the judgment.

On appeal, the California Second District Court of Appeal reversed the trial court’s judgment and directed it to conduct a new trial on damages, limiting the Loubar plaintiffs’ claims for damages incurred after January 2017. The Court of Appeal further directed the trial court to enter a new judgment that found in favor of GBR and against the Loubar plaintiffs on their third cause of action regarding Parcel 8. First, the Court of Appeal held that GBR did indeed fail to relinquish possession of Parcels One and Three. Generally, each cotenant “equally is entitled to share in possession of the entire property” with a cotenant. (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548.) However, no cotenant is allowed to exclude the other from any part of the property. (Id.) The wrongful dispossession or exclusion by one cotenant of the other cotenant(s) from property of which all are entitled to possession is an ouster. (Id.) The Court of Appeal held that substantial evidence supported the finding that GBR dispossessed the Loubar plaintiffs from their one-half interest in the Property when GBR refused to allow the Loubar plaintiffs to use some of the offices at the mobile home park. This action was in itself an ouster as “a refusal after a proper demand by a tenant in common in possession to admit his co-tenant into the possession, is itself an ouster, and dispenses with the necessity of further proof on that point.” (Greer v. Tripp (1880) 56 Cal. 209, 212.) The Court of Appeal also found that GBR did not share any rental income it received from the mobile home park leases with the Loubar plaintiffs. When a cotenant receives rent from third parties to use the land, the cotenant must share the rental income with the other cotenants. (Dabney-Johnston Oil Corp. v. Walden (1935) 4 Cal.2d 637, 656.)

Second, the Court of Appeal disagreed with the trial court’s ruling that GBR violated the Pecoraro judgment because GBR excluded the Loubar plaintiffs from Parcel Eight. The Court of Appeal reasoned that although the Loubar plaintiffs testified that GBR erected a fence around Parcel 8, GBR’s fence did not constitute an exclusion because as a tenant, GBR had a right to use the entire property, which included keeping trespassers off the property. As long as GBR was not excluding the Loubar plaintiffs, there was no ouster. Further, Lou admitted at trial that he leased a portion of Parcel Eight without sharing income with GBR, and as such, the Loubar plaintiffs were not excluded from Parcel Eight because they were actually using it.

Lastly, on the issue of claim preclusion, the Court of Appeal held that GBR was partially correct on one of its arguments that claim preclusion barred the Loubar plaintiffs from recovering damages for GBR’s possession of the Property before the Pecoraro judgment became enforceable. The Court of Appeal that if the Loubar plaintiffs wanted to seek damages for GBR’s possession of the property before January 2017, they should have sought those in the Pecoraro action. Thus, the Court of Appeal held that the trial court’s award to the Loubar plaintiffs for GBR’s possession of the property as far back as August 2012, was in error.

Owning property with other cotenant(s) may sometimes lead to disputes between the parties. One party may commit an ouster to another party and deprive that cotenant of their right to share in possession the entire property. A cotenant may also fail to share any rental income he or she received from third persons for the use of the property.

When this happens, a tenant in this situation may benefit from good legal advice on the topic. If you find yourself in these circumstances and are contemplating commencing legal action, then please contact Underwood Law Firm, P.C., for an initial consultation.

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