Encinitas Partition Lawyers

The City of Encinitas was named after the oak forest in the valley and its Spanish name translates to “little oaks.” Encinitas is home to a number of beaches coveted by locals and surfers and is ranked as one of the best surf towns in the world. The city is also known as the “Flower Capital of the World,” with its extensive collection of nurseries and gardens. As the average sale price of homes continues to rise, residents of Encinitas who want to move away may want to sell their property and get the best value. Jointly owned real estate, however, may become a problem if a dispute arises between co-owners.

A partition lawsuit requires real estate to be sold regardless of the requests of the other title owners. The purpose of a partition action is to permanently end all disputes and remove all obstacles to the free enjoyment of land by one person. (McGillivray v. Evans (1864) 27 Cal.92.) These types of actions can be brought for all types of real estate from houses to farms to office buildings to apartment buildings. Similarly, partition actions are available all types of ownership situations from joint tenants to tenants-in-common to partnership property to property jointly owned by former spouses.

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.”

Generally, a partition action is the best remedy for disputing co-owners in four broad categories:

• Family owned real estate where only one party wants to sell;
• Former romantic partners who jointly own real estate where only one party wants to sell;
• Jointly owned real estate where only one party wants to sell;
• Partnership real estate where only one party wants to sell;

First, a partition action is filed. A partition action can be filed if one co-owner of real property or a piece of real estate wishes to sell the property or piece of real estate in question but the other co-owners or co-tenants do not wish to sell their ownership rights. 

Second, the court may appoint a court referee to oversee the sale of the property in question. The sales procedure includes that all parties agree to the terms and conditions of the sale in writing. If the parties can not agree, as partition actions are usually very contested issues, then the referee that the court appointed may recommend terms and conditions to the court. Then the court will hold a hearing to decide whether or not to accept those terms and conditions. 

Third, in some states and counties, the property’s value will be appraised via a third party or another property appraisal with no ties to any of the parties. While this is not required in all states, it is recommended to make sure that all parties are on the same metaphorical page as to the potential sale proceeds of the property in question. 

Fourth, the referee will conduct the sale in the method most agreeable to all of the party’s goals. This can be via a public auction or a private sale. Regardless of the specific method of partition by sale, the court will determine if the sale was “fair.” If it is decided that the property’s sale proceeds had a lack of proper notice, the sale amount is not within reasonable the value of the property, or if the proceeds were unfair- the court would rule that the property will be up for sale again. 

Lastly, the court will order that the proceeds of the sale, minus any court litigated or approved offsets or costs, will be distributed equitably amongst all of the co-owners or people with interest in the property.

Generally, when property is owned by joint tenants, each joint tenant has the right to seek an action in partition to sever the joint tenancy. (CCP § 872.210(b).) However, a joint tenant’s right to partition is not absolute. The right may be waived by a prior express or implied agreement to not partition. Recently, the California Court of Appeal addressed the effect of an implied waiver in a case decided by the Second District Court of Appeal known as Murray v. Hull (2020) 2020 Cal.App.Unpub.LEXIS 6415.)

There, a woman and her siblings acquired title to the Property as joint tenants, and later the woman sought to partition the Property and attached documents indicating that two of her family members consented to the partition by sale. The trial court denied the woman’s request for partition and found that there was an implied, if not express, agreement among the family that the property was to stay in the family for the use by the family and that a partition would defeat this purpose. The woman appealed.

The Court of Appeal affirmed, holding that courts may determine that an agreement waiving the right to partition exists if the “purpose for which the property was acquired would be defeated by partition” or “if a partition would frustrate the purpose for which the land is now being used.” (Pine v. Tiedt (1965) 232 Cal.App.2d 733, 739-740.) The Appellate Court considered testimony that the intent of quitclaiming title to all the siblings was that the house was for the family to ensure that the family members would have a place to go. In addition, the mutual intent to keep the Property in the family was shown through the fact that title given to married family members was given as their sole and separate property. Further, the family members took title as joint tenants and two of the siblings were living at the house. As such, the Appellate Court determined that “partitioning and selling the property would defeat both the purpose for which the property was acquired … and sale would mean that the property would no longer function as a “family house” and would leave the two siblings homeless. (Murray v. Hull, 2020 Cal.App.Unpub.LEXIS 6415 at *6-7.) Thus, Murray supports the rule that joint tenants may not seek to partition the property if there has been a prior express or implied agreement to not partition.

In order to start resolving these situations, you should contact an experienced Encinitas Partition Lawyer as soon as you are ready to start the next chapter of your life.

Learn more here.