Menifee Partition Lawyers

The city of Menifee was named after Luther Menifee Wilson, a miner who discovered a significant quartz lode in 1883. The development of Menifee began as a retirement community, which later developed further into a master-planned community. More recently, Menifee has experienced substantial growth, attracting many new residents. According to Redfin, In June 2023, Menifee home prices were down 2.7% compared to last year, selling for a median price of $560K. On average, homes in Menifee sell after 31 days on the market compared to 21 days last year. There were 158 homes sold in June this year, down from 176 last year. Menifee residents who own real estate may face disputes with co-owners. There are at least four different instances where an Menifee Partition Lawyer can be helpful:

• 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 action is an action brought by a co-owner of a piece of real property against another co-owner, seeking to divide the property according to the respective interests of the co-owners. In order to establish a right to a partition, a party must show that they have some ownership interest in the subject property. Under Code of Civil Procedure section 872.210, any owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate is owned by several persons concurrently or in successive estates may bring a partition action. (CCP § 872.210.) Therefore, a co-tenant has an absolute right to partition. (Formosa Corp. v. Rogers (1951), 108 Cal.App.2d 397.) At the Underwood Law Firm, our attorneys are more than familiar with partition actions and the step-by-step process of pursuing a partition.

Generally, a partition action cannot be stopped absent a valid waiver. Virtually universally, the instances in which a court has found a valid waiver have involved some sort of written contract or adverse possession of property. As such, many parties try to stop a partition action through mediation, or a buy-out agreement. In most instances, the parties to a partition action can benefit from creative lawyering by those who are familiar with the different options for resolving real estate disputes. The best Menifee 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 Menifee Partition lawyer will be familiar with the process.

A partition action can always be resolved informally at any time prior to the first day of trial, or entry of judgment. In fact, in numerous instances, just filing the partition itself leads the other party to seek a resolution between them. We always encourage the parties to talk throughout every phase of the process, as that can lead to the best outcomes for everyone.

From our perspective, every piece of litigation is just part of a larger “negotiation.” In any negotiation, the party who has the best leverage is usually able to achieve a more favorable outcome. The lawsuit provides the client with more leverage because they have more options available to them than without the prospect of a resolution from a judge. As such, all that a lawsuit does is provide one party with more leverage in the negotiation about how to resolve the dispute. For this reason, the best way to informally resolve a dispute is to combine discussions with active litigation, so that the matter can be quickly resolved without unnecessary expense. Throughout the process, our attorneys are in touch with our clients about their options and the prospects for informal resolution through mediation or negotiation. A knowledgeable Menifee Partition Attorney will be able to give you good advice on these issues.

Following the sale of the property, the referee will divide the proceeds of the sale among the parties in according to amounts expended for the "common benefit."

When the sale is confirmed by the court, the court may enter an order about the proceeds of sale. Under the law, the sale proceeds must be applied in a defined order. Specifically, Code of Civil Procedure section 873.820 states that the sale proceeds go towards (a) payment of expenses of the sale, (b) payment of the other costs of partition, (c) payment of any liens on the property in priority, (d) and distribution of the remainder to the parties in proportion to their shares as determined by the court.

Generally, the last part of the priority list includes what is commonly known as an "accounting" or a determination of whether one party has contributed more than their fair share to the property in the form of taxes, improvements, or other benefits for the property. For example, if one party is a 50% owner of the property, but has paid all of the property taxes for the property, then that property owner will have a claim for the remaining 50% above their interest in the property. An experienced partition lawyer will be able to help a co-owner determine their claims to the proceeds and make these arguments to the court in an effective way. An experienced Menifee Partition Attorney will be intimately familiar with these matters.

Attorney fees in a partition action are specifically provided by statute. Code of Civil Procedure (CCP) section 874.040 states: “Except as otherwise provided in this article, 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.” Such costs include “[r]easonable attorney's fees incurred or paid by a party for the common benefit.” (CCP § 874.010, subd. (a).) The following paragraphs discuss an appeal contesting the allocation of attorney fees awarded to a plaintiff in a partition action as illustrated in Akhbari v. Nateghi (2002) 2002 WL 1764418.

In Akhbari v. Nateghi, plaintiff Hamid Akhbari owned a 30 percent interest in real property. The defendants Mohsen Nateghi, Younes Nateghi, and Amir Nateghi owned the remaining 70 percent interest of real property in Orange, California. In 1998, defendants, without plaintiff's knowledge or consent, entered into a contract to sell the entire parcel to the existing tenant, and opened escrow. Before escrow closed, plaintiff learned of the sale and filed a complaint for partition. Defendants filed a cross-complaint for specific performance, alleging plaintiff had executed a contract to sell his 30 percent interest in the property.

After a bench trial, the trial court confirmed the 30 percent-70 percent ownership interests between plaintiff and defendants. The trial court found that plaintiff never agreed to sell his portion to defendants and that the alleged contract to sell was a forgery. As a result, plaintiff was decreed the prevailing party on the complaint and cross-complaint and was awarded attorney fees and costs. The trial court ordered the property partitioned and appointed a receiver to collect rents and the proceeds of sale and to make proper distribution of them in accordance with the court's findings. The trial court also granted the plaintiff’s subsequent motion to sell the property and issued an order that set out the purchase price and allocated costs of sale between the parties.

The defendants appealed from the award of attorney fees and allocation of costs to them in connection with the partition action. They appealed on the grounds that the court erred in awarding all of the attorney fees that plaintiff requested and contested the allocation of the fees between the parties. The defendants contended that attorney fees should have been allocated based in the same proportion as the ownership interests of the parties.

The Fourth District Court of Appeal ultimately affirmed the trial courts orders relying on section 874.040 that unequivocally gives the court the right to assess attorney fees other than proportionate to the parties' interests in the real estate in such a way “as may be equitable.” In this case, the Court of Appeal opinioned that the record showed the trial court sufficiently allocated fees and costs based on equitable considerations. The defendants as 70 percent owners, benefited the most by the partition action. The defendants had entered into a contract with the buyer that was impossible for them to perform, since they could not convey 100 percent ownership as the plaintiff with an ownership interest in the property did not consent. When the existing tenant and buyer discovered the facts, he stopped paying rent and did not resume until ordered by the receiver. Without income from the property, payments were not made and the lenders had the right to foreclose. Based on those facts, the Court of Appeal concluded that it was reasonable for the trial court to find the allocation of all the fees to defendants was equitable.

The Court of Appeal rejected the defendant’s argument that the court erred by awarding plaintiff 100 percent of the attorney fees requested. The defendants specifically claimed that plaintiff was not entitled to the fees for defense of the cross-complaint. Because the defendants failed to challenge the claim at the trial court level, the Court of Appeal considered the claim waived. Even had the claim been preserved, the Court of Appeal concluded the allegations in the cross-complaint were pleaded as affirmative defenses in defendants' answer to the complaint, making them an integral part of plaintiff's case where there is no requirement to apportion fees.

As with the amount of fees, the Court of Appeal considered the claim that the trial court erroneously attributed all of the costs of sale to the defendants share of the proceeds as waived because defendants failed to object to the trial court’s accounting.

Lastly, in response to the defendant’s attempted appeal, the plaintiff filed a motion for sanctions against defendants for filing a frivolous appeal that unreasonably violated California Rules of Court. The Court of Appeal explained that an appeal is frivolous and subject to sanctions only when it is: (1) prosecuted for an improper motive to harass the respondent or delay the effect of an adverse judgment; or (2) when the appeal indisputably has no merit in which any reasonable attorney would agree that the appeal is totally and completely without merit. The defendants violated of California Rules of Court, rule 26(a)(2) when they failed to include all necessary documents, failed to include page numbers in the index, and failed to include an alphabetical index. However, the Court of Appeal declined to impose sanctions on that ground and concluded on the appeal was not wholly without merit even if it was unsuccessful.

Instituting or defending a partition action can incur steep attorney fees depending on the facts of a case. In a partition and sale of real property, costs and fees will often be deducted from the sales proceeds of the property. Although attorney fees incurred for the common benefit are usually allocated based on the respective party’s ownership interest, equitable considerations can shift attorney fees to the losing party. At Underwood Law Firm, P.C., we have extensive experience in partition actions and have successfully persuaded the court to shift the payment of attorney fees to the opposing party. If you are thinking of initiating a partition action, you may benefit from legal advice on how attorney fees can be allocated depending on the results of the partition action. Please contact Underwood Law Firm, P.C., for an initial consultation.

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