Lien Claim in an Answer to a Partition (CCP § 872.420)

Code of Civil Procedure section 872.420 requires defendants with a lien on the property to describe the lien in his answer. This statute is important as a rule of pleading because failure to adequately allege a lien might lead to forfeiture of the argument on appeal.

Code of Civil Procedure section 872.420 states:

Where the defendant has or claims a lien on the property, the answer shall set forth the date and character of the lien and the amount remaining due thereon.

(Amended by Stats. 1976, c. 73, p. 110, § 6.)

“Shawn” and “Julie” are an unmarried couple who bought a house in Los Angeles together as joint tenants. They move in and begin living together in the new home. They also take out an initial mortgage on the property.

Unfortunately, Shawn has a gambling problem. After losing a lot of money, Shawn borrows money from a bank without telling Julie. The bank places a lien on the property.

After several years, Shawn and Julie’s relationship deteriorates. Julie wants to sell the house and move on, so she sues Shawn for partition by sale.

In Shawn’s answer responding to Julie’s complaint, Shawn describes the bank’s lien on the property that resulted from his gambling issues along with the date the lien was executed. Shawn also states the remaining amount due. With this, Shawn has included the information required in his answer under CCP § 872.420.

1976 Addition

Section 872.420 continues a portion of former Section 758. The provision for waiver for failure to disclose additional security formerly found in Section 758 is omitted because it was unduly harsh. It should be noted that nothing in Section 872.420 precludes the defendant from alleging such additional costs, fees, and expenses related to the lien as he may be entitled to in addition to the amount remaining due on the lien itself.

As is the norm for most of the partition statutes, section 872.420 does not include an “official” Assembly Comment provided by the Legislature. This is primarily due to the Legislature’s overall adoption of the Law Revision Commission’s suggestions when it passed the new partition statutes in 1976. The introduction to Assembly Bill 1671 (which ushered in this statute among others) states that the Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” As such, it’s reasonable to assume that the Legislature endorsed the Revision Commission comment for this statute.

As to its effect, section 872.420 is simply a rule of pleading. Nonetheless, its importance cannot be understated. Defendants are under a duty to answer and deny any allegations in the complaint which they do not deem admitted. ( Stewart v. Abernathy (1944) 62 Cal.App.2d 429, 432.)

Thus, defendants are under an obligation to acknowledge any liens on the property of which they have knowledge. This is especially so because the final judgment of partition is binding and conclusive on all persons named as parties to the action. (Ivancovich v. Weilenman (1904) 144 Cal. 757, 761.)

Beyond acknowledgement, though, this statute has important effects regarding the accounting stage of partitions. (see Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035.) This is because “a cotenant relieving the common property from a lien or charge for the joint benefit of the tenants in common is entitled to an equitable lien by subrogation.” (Snider v. Basinger (1976) 61 Cal.App.3d 819, 823.)

Put differently, suppose one cotenant takes out a loan against their interest in the property. The other cotenant, however, makes payments on the loan when the first fails to pay. Because they paid to relieve the common property, they have a claim for an equitable lien by subrogation that they would need to allege in the complaint, lest that argument be forfeited at the appellate level.