Lancaster Partition Lawyers

The City of Lancaster began developing in 1876, when the Southern Pacific Railroad laid its track through the city. It wasn't until the 1930s that Lancaster experienced a growth in residents when the Edwards Air Force Base began its construction. Today, over half of the housing units in Lancaster are owner-occupied, suggesting that many homes are jointly owned. As such, residents of Lancaster who own real estate may face disputes with co-owners. Generally, the best Lancaster Partition Lawyers usually find partition action to be the best remedy for disputing co-owners in four broad categories:

• Boyfriend-Girlfriend co-ownership of property;
• Sibling-Sibling co-ownership of property;
• Parent-Child co-ownership of property; and
• Investor-Investor co-ownership of property;

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." The best Lancaster Partition Lawyer will be able to share information on this process with you.

Under the Partition of Real Property Act, the court instead appoints an appraiser to do the heavy lifting. The new statute states that the court “shall determine the fair market value of the property by ordering an appraisal.” (CCP § 874.316.) The court doesn’t have to be the one to order the appraisal, but this is only if all the co-owners agree to a different method of valuation.

If, however, an appraisal occurs, it shall be conducted by a disinterested third-party real estate appraiser licensed to determine the fair market value of properties. After the appraisal is conducted, parties may file objections to the value and can even offer additional evidence of value to the court.

After the valuation is complete, parties will be introduced to the key feature of the new statute: the buy-out option. If a co-owner requests a partition by sale, then the court will notify the other co-owners that they may buy all the interests of the cotenant that requested the partition. (CCP § 874.317.)

This is, essentially, a right of first refusal. The co-owners who don’t want the property sold now have the option to simply buy out the requesting party. Additionally, the buy-out price will be based on the property’s valuation, determined earlier in the litigation. And if one or more parties exercise the buy-out, then the court will reapportion ownership percentages based on the price paid. A top Lancaster Partition lawyer will be familiar with the process.

Generally, anyone considering filing a lawsuit should consider all of their alternatives, including an informal resolution of the problem. This can take the form of a discussion with the other owner or owners about agreeing to sell the property, negotiating with the co-owner to create a formula to divide the proceeds from the sale, or retaining a lawyer to engage in a mediation with the other owners.

Throughout the partition process, and even on the day of trial, any of the owners can make an agreement about the sale of the property. This can happen through a phone call, through negotiations between the parties' lawyers, or through a mediation session with a retired judge or trained mediator. There are many benefits from a mediation session, including confidentiality provisions contained in the law in Evidence Code sections 1115 through 1129.

Specifically, Evidence Code section 1119, subdivision (a), provides "no evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given." A knowledgeable Lancaster Partition Attorney will be able to give you good advice on these issues.

Under the law, a property owner can make a claim for contribution for anything that they have expended for the common benefit of all the parties as it relates to their jointly-owned property. Code of Civil Procedure section 874.410 states that “the court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.”

For example, the credits can include expenditure in excess of the co-tenants fractional share for necessary repairs and improvements that enhance the value of the property. (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036.) Similarly, payments for interest, taxes, and insurance made by any co-tenant could be the subject of a reimbursement claim. (Hunter v. Schultz (1966) 240 Cal.App.2d 24.) An experienced Lancaster Partition Attorney will be intimately familiar with these matters.

After a trial court has ordered the partition of real property, how may the timing of contribution claims, the repudiation of co-tenancy by the parties, and clear mistakes in the allocation of the proceeds from the partition sale affect the case’s outcome on appeal? The answers largely depend on the particular facts of the case in question. The following paragraphs discuss how such circumstances affected the trial court’s judgment in Broukhim v. Broukhim (2012) 2012 WL 925018.

In Broukhim , Roya (“Plaintiff” or “Respondent”) sued her sister-in-law, Neda (“Defendant” or “Appellant”) for partition by sale of real property located in Los Angeles, California (the “Property”) and for contribution. Roya's husband, Fariborz, and his sister, Neda, had previously acquired title to the Property in 1990, with each owning an undivided 50 percent interest as tenants in common. Fariborz and Neda had purchased the Property for use by their parents, Faraj and Farideh. Although their parents had lived there, Fariborz and Neda never resided at the Property themselves.

In 1999, Fariborz transferred his 50 percent interest in the Property to the Fariborz Broukhim and Roya Broukhim 1999 Trust (the “1999 Trust”). Fariborz and Roya were the designated trustees of the 1999 Trust. After Fariborz passed away in October 2007, Roya became the sole trustee and beneficiary of the 1999 Trust. In 2008, Roya, as surviving trustee of the 1999 Trust, brought the above-described action against Neda for partition and sale of the Property and for contribution. Alternatively, Roya sought to quiet title to the Property and obtain a declaration that she was the 100 percent owner of the Property. Neda answered the complaint and sought to assert various affirmative defenses. Among other things, Neda asserted that Roya’s contribution claim was time-barred.

Following a bench trial in 2011, the trial court found: (1) Neda and Fariborz had purchased the Property as tenants in common in 1990, each owning a 50 percent interest; (2) Fariborz paid $150,000 toward the down payment, Neda paid $81,000, and Fariborz obtained a loan for the balance; (3) Fariborz made all the payments on the loan without Neda's assistance or contribution and paid all the taxes and maintenance expenses related to the Property; and (4) Roya's claims for partition and contribution, as trustee of the 1999 Trust, were not time-barred because neither Neda nor Roya had repudiated their co-tenancy prior to Roya's filing the partition action.

Under Code of Civil Procedure section 873.820, the trial court ordered the Property sold with the sale proceeds to be applied first to pay the expenses connected with the sale and then to Roya's attorney fees and court costs. As to the remaining proceeds, the trial court ordered that “22 percent” be paid to Neda based upon her $81,000 down payment toward the $365,000 purchase price and “88 percent” to Roya to reflect Fariborz's greater down payment and other payments made for the home loan, property taxes and insurance for the Property. Neda appealed from the judgment, again contending Roya's claim for contribution was time-barred.

On appeal, the California Second District Court of Appeal held that the trial court properly found Roya’s contribution claim was not time barred. The Court of Appeal reasoned that, contrary to Neda’s argument, partition actions are generally not subject to a statutory limitation period. The Court clarified that the statute of limitations does not bar relief between tenants in common in an action for partition. Rather, the statute of limitations bars relief only where a party has, by operation of the statute, lost all right to the underlying property, and such right has, by prescription, become vested in another, thereby divesting the party seeking relief of an interest in the property that is required for partition.

Additionally, the Court of Appeal held that, contrary to another of Neda’s arguments, the trial court properly found Roya’s contribution claim was not limited to expenditure made within two years prior to the filing of the partition action. The Court of Appeal explained that nothing in the cases cited by Neda established a two-year limitations period for contribution actions if the co-tenancy has not been repudiated. The Court held that the statute of limitations does not begin to run on a claim for contribution unless or until the parties' ownership interests in the property becomes adversarial. At this point, a two-year limitations period begins to run as to each expenditure made to benefit the Property.

Finally, the Court of Appeal acknowledged that the trial court had erred in its judgment apportioning 22 percent of any remaining proceeds from the partition sale to Neda and 88 percent to Roya. Since the trial court's disbursement order exceeded 100 percent of the proceeds, the Court of Appeal could not determine from the record whether the trial court intended to apportion 22 percent to Neda and 78 percent to Roya, or 12 percent to Neda and 88 percent to Roya, or some other allocation altogether. The Court of Appeal concluded that remand would be necessary for the trial court to correct and clarify its allocation order.

Thus, the California Second District Court of Appeal affirmed the order granting partition, directing a sale of the property, and awarding Roya contribution. Additionally, the Court of Appeal reversed and remanded the judgment for the limited purpose of allowing the trial court to correct a clear mistake in its allocation of the sale proceeds.

As we’ve seen, after a trial court has ordered the partition of real property, the timing of contribution claims may matter if there has been a repudiation of co-tenancy. Additionally, mistakes in the allocation of the proceeds from a partition sale may be clarified on appeal.

As there are many different ways to waive the right of partition, and you are considering it as an option, then you may benefit from good legal advice on the topic. If you find yourself contemplating a partition action, or faced with defending one, then please contact Underwood Law Firm, P.C. for an initial consultation.

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