Livermore Partition Lawyers

Livermore, a city in Alameda County, is at the eastern edge of the San Francisco Bay Area. This proximity to a major city has elevated Livermore’s real estate market so that most buildings are jointly owned by two or more owners. Joint property acquisition allows two parties to combine their strengths when entering the real estate market. However, co-owners are bound by the single property, and disagreements arise when each co-owner has different plans for the shared property. One co-owner may want to sell and profit, while another may want to hold and reinvest. In these situations, speaking with a Livermore Partition Lawyer is crucial to know your rights as a joint owner. Livermore Partition Lawyers often find disputing joint owners in the following categories: 

• Split land where one party wants to sell;
• Girlfriend-Boyfriend land where one wants to sell;
• Investor-Investor land where one wants to sell; and 
• Brother-Sister land where one wants to sell;

A partition action is a judicially-supervised forced sale of real estate. In California, each co-owner has an “absolute” right to partition the property. “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the co-tenants will be promoted by refusing the application nor temporarily postponing the action.” (Priddel v. Shankie (1945) 69 Cal.App.2d 319, 325 (emphasis added).) Thus, any owner of real estate (whether 5%, 50%, or 95%) has the right to bring a partition action in California.

Basically, any person who is an owner of real estate can bring a partition action in California. Code of Civil Procedure section 872.710, subdivision (a), states "A partition action may be commenced and maintained by any…owner of…such property." California Civil Code section 872.210 provides a property owner with the "absolute right to partition" absent a valid waiver. Thus, a partition action can be brought by anyone who no longer wants to own jointly owned real estate, other than spousal property. The best Livermore Partition Lawyer will be able to share information on this process with you.

Broadly, a partition action has only relatively simple steps. First, a party files a lawsuit to establish their rights to the property and desire to sell the property. Second, the court determines that the property should be sold, and appoints an appraiser to appraise the property and offer the other owner the opportunity to buy out the interest. Third, if the other fails to do so, then the Court appoints a “partition referee” (who is frequently a licensed Realtor) to sell the property, and they market and sell the property and deposits the proceeds into a trust account. Fourth, the court determines how much each party should receive from the proceeds, which should include addressing offsets and claims for contribution in an “accounting.” A top Livermore 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 Livermore 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 Livermore Partition Attorney will be intimately familiar with these matters.

When creating a trust, the settlor may give the trustee(s) power to partition the property of the trust estate. The following paragraphs discuss how the court determines whether a partition is waived with an oral agreement when a written instrument, in this case a trust, states that partition is available in Betchart v. Betchart (2013) 2013 WL 1694782.

In Betchart, Anthony Betchart (Tony) filed a complaint for declaratory relief and injunctive relief seeking to enforce alleged oral agreements between Tony’s mother Waldtraut Betchart (Wally), her husband, and Tony. He also sought to prevent the enforcement of a trust executed by Wally and her husband. Wally, as trustee, filed a cross-complaint against Tony to partition the properties involved in the suit.

Ludwig G. Betchart (Ludwig) and Wally had six children together, one being Tony. Tony was a shareholder, director, and officer of Ludwig Betchart, Inc. (LBI) and Elizabeth Enterprises, Inc. (Elizabeth). Ludwig and Wally founded LBI in the 1960s. Tony was also the managing member of CENA, LLC (CENA). The companies involved the rental of heavy construction and related equipment.

Wally wanted to have a trust and to get her husband on board, she agreed that whoever worked for the business would get the business and two adjacent parcels of land in Fremont. The parcels of land were continuous to one another, but one did not have vehicular access to public streets without the other parcel.

The three sons Ludwig K. Betchart (Champ), Herman Betchart (Herman) and Tony each became involved with the business once they graduated high school. Ludwig and Wally promised them that they would inherit the business and the land if they continued working in the business. Tony began working in the business in 1987 and Herman left in 1988. Champ and Tony continued working in the 1990s.

An attorney prepared a trust for Ludwig and Wally in 1992 (the original trust). The original trust named Wally and Ludwig as the co-trustees and that the co-trustee would remain as the sole trustee if either one died. Upon the death of the first trustor, the trust estate was to be divided into three separate trusts the “Survivor’s Trust” the “Marital Trust” and the “Bypass Trust”. Once the surviving spouse passed, the trustee was to distribute the Bypass Trust, and any remaining portions of the Survivor’s and Marital Trust to Champ and Tony, as long as they were active in LBI.

Wally had wished to amend the trust sometime in the late 1990s because Champ had stopped working for LBI. In 2002, Ludwig was diagnosed with cancer and had stopped working. In May 2003, Ludwig and Wally revoked and amended the original trust, dividing the estate into two trusts instead of three and stated that the trust estate was to be distributed equally among the children and the owner of LBI was to have the right to rent the properties. LBI was to be distributed to Tony. The surviving trustee had discretion to allocate assets and had power to partition and divide the property.

Tony continued to work at LBI in reliance of the terms of the original trust and the oral promises that had been made to him. Wally confessed to Tony that Ludwig never intended to change the original trust and that she had tricked him into signing the amended trust when he was terminally ill. According to Tony, Wally had told Ludwig that the documents were merely an update.

In September 2005, Tony and his wife agreed to enter a series of transactions that led to Tony being the president and 51 percent shareholder of LBI, Wally retaining 46 percent interest, and another son holding 3 percent.

In October 2008, Wally sought to evict LBI from the parcels of land. In July 2009, Tony, LBI, Elizabeth, and CENA filed a complaint seeking declaratory relief and injunctive relief to prevent Wally from evicting Tony from the properties. The complaint pled that the purpose of the action was to enforce a contract and obligation of trust. Wally answered the complaint and as the trustee of the survivor’s and bypass trust, filed a cross-complaint against Tony to partition one of the parcels.

After the opening statements on the declaratory relief action, Wally’s counsel made an oral motion for nonsuit. The trial court issued a tentative ruling granting Wally’s nonsuit motion and after oral argument on the ruling, the court adopted it. In November 2010 the trial court issued its order granting motion for nonsuit and severed the cross-action for partition.

In April 2011, Wally filed a motion for summary judgment on her partition action. She asserted that she was entitled to interlocutory judgment under CCP § 872.720(a). Tony filed opposition asserting that his declaration and Wally’s deposition showed that Ludwig was too sick to amend the trust and his signature was a result of fraud, undue influence, and breach of fiduciary duty.

In November 2011, the trial court filed an order granting interlocutory judgment for partition. The court found that Wally demonstrated she was the trustee of the survivor’s trust and the bypass trust. As trustee, she showed clear title to the property was 84.97 percent undivided ownership to trustee of the survivor’s trust; 9.26 percent to trustee of the bypass trust, and the remaining 5.77 percent was owned by Tony.

Tony argued that Wally had waived her right to partition by the existence of two enforceable contracts that required the testamentary distribution of the estate upon Wally’s death. Wally had objected to all the evidence presented by Tony on relevancy grounds which the court had sustained. This led the court to find that Tony had submitted insufficient evidence to prove that there was a waiver of the right to partition. The court filed its interlocutory judgment for partition by sale in December 2011. Tony appealed both the order granting nonsuit and the order for partition.

The Court of Appeal for the First District found that the trial court properly dismissed the claim for declaratory relief. As to the partition action, the Court of Appeal began by defining who can bring an action for partition, what a partition means and what is its purpose. Applying those principles to the case, the Court of Appeal found that the undisputed evidence showed that Wally was a co-owner of the property, and that title was clear. The record indicated that the amended trust divided the interests in the same percentages that the trial court found. Fairness required sale of the property as Wally presented evidence that the Property was landlocked and physically dividing the property would result in violation of local zoning requirements.

The Court of Appeal went on to say that because the evidence supported that Wally was entitled to partition, the burden then shifted to Tony to raise a triable issue of fact that Wally was not entitled to partition or that fairness required that the property be divided physically rather than sold. Tony failed to do so.

Tony argued that he presented enough evidence to show waiver, as the right to partition could be waived by an express or implied agreement. The Court of Appeal analyzed this argument by defining that the right of partition is waived when there is evidence of an actual or implied contract expressing an intent to waive the rights under the statute.

Applying that rule, the Court of Appeal combined the fact that none of Tony’s evidence was inadmissible to show waiver, and the express terms of the original trust and the amended trust granted the trustee power to partition, to find that the trusts were clear and unambiguous. Each provided the co-trustee with the right of partition. The court states: “We are aware of no court that has held that an implied contract or oral contract can waive the statutory rights under section 872.710 when a written contract expressly states that the person has the right to partition.”

Regarding the issue of fairness, Tony contended that the trial court did not consider his evidence that the property was necessary for the operation of LBI. However, the Court of Appeal found that Tony’s evidence solely related to the economic loss he would suffer. Partition could not be denied because it would result in financial loss to the tenants. American Medical International, Inc. v. Feller 131 Cal. Rptr. 270, 273 (Cal. App. 2d Dist. 1976).

Tony’s final contention regarding the partition was that the principles of equity and fairness barred partition. To this argument the Court of Appeal states that Tony did not cite any language in the original trust that supported his argument that the purpose of the original trust was to ensure the survival of LBI. Partition was consistent with the purpose of the original trust. The argument that Tony relied on the oral promises that he would receive the property and LBI if he continued to work there would estop Wally from partitioning the property was also without merit as estoppel could not be used because the oral representations contradicted a written document.

A court may order a partition when such power is granted to a trustee by virtue of a trust. Here, Tony tried to argue that Wally had waived the right given to her by the trust to partition the property because she has made oral promises that he could keep the property if he continued to work there. However, the Court of Appeal could not find support in this argument because a written document supersedes any oral contentions. Therefore, the Court of Appeal affirmed the partition.

A court’s determination of ownership interests in a property depends on the facts and circumstances of each particular case. Factors such as agreements and who pays for certain expenses for the property can ultimately affect the outcome of a partition case. If you are considering partition as an option, or find yourself defending one, then you may benefit from good legal advice on the topic. Please contact Underwood Law Firm, P.C., for an initial consultation.

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