Partition Action in California FAQs

A California partition action is a forced sale of real estate brought by one of the property owners against the others. These actions happen when one owner of property wants to sell, but another does not. As a title owner of property generally has an "absolute right" to partition, or sell, real estate, courts will grant the legal remedy of selling the property and dividing the proceeds from the property's sale. As these actions involve detailed rules of property law, our attorneys are experienced in how to win a partition action.

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."

Sometimes, when romantic partners buy real estate together, or a person inherits real estate together with another family member, or real estate investors buy property for development, the relationship deteriorates and the parties cannot agree on what to do with the property. When you reach that situation, then a partition lawsuit is something you should consider.

There are at least four different ways where a partition action should be considered:

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

In each of these situations, a joint owner of property may find themselves feeling like they are held "hostage" to the whims of the other joint owner. This can feel incredibly chaotic and hopeless for individuals who find themselves in a bad situation, and are simply ready to move-on with their lives. For people who find themselves in these situations, a partition action can be just the remedy they need. An experienced Arden Partition Attorney can help guide you through that process.

Generally, the first step in the partition lawsuit process is not a lawsuit, but an earnest attempt to resolve the matter informally, such as through a partition agreement. Only when it is clear that litigation is the only option, is it clear that a partition lawsuit is appropriate. In that instance, a Sacramento partition law firm can help.

When it is clear that a partition lawsuit is necessary, then the process begins with the filing of a complaint in the county where the property is located. There are several technical requirements for the partition complaint, and many important steps that must be taken during the lawsuit to ensure that the process is managed effectively.

In a partition lawsuit, there are generally four different steps. First, the court determines each party's ownership interests. Second, the court will decide on the manner of sale. Third, the court will order the property be sold. Fourth, the proceeds from the sale will be divided between the parties based on their relative contributions to the property.

While some may believe that inherited property cannot be partitioned, this is incorrect. Instead, when the property is owned as the result of an inheritance, there may be an additional step for an appraisal, and a right of first refusal, as provided by the Uniform Partition of Heirs Act. Under this act, where a co-tenant requests partition by sale, the law gives the non-partition owner the option to buy all of the interests of the co-tenants who requested the sale.

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.

A partition action is filed in the Court by submitting a "complaint" that complies with all of the requirements of the Code of Civil Procedure. In California, almost all of the partition actions are filed by attorneys on behalf of parties because there are a number of technical legal requirements for filing a lawsuit.

Specifically, Code of Civil Procedure section requires that a Partition Complaint contain (a) a description of the property, including its legal description and its street address for real estate, (b) all interests that the plaintiff has or claims in the property, (c) all interests of record or actually known to the person filing the lawsuit, (d) the estate as to which partition is sought and a prayer for the partition of the interests, and (e) an allegation of the facts justifying relief when a sale of the property is sought. In order to be valid, a partition complaint should include each of those required allegations.

In California, there are several different legal ways to partition real estate. Under the law, the judge will decide how to partition the property, whether by sale, partition in kind, a partition by appraisal, and a partition by judgment. (CCP § 872.810; Cummings v. Dessel (2017) 13 Cal.App.5th 589.)

Generally, the most common way is a partition by sale, which is usually best for single family homes, office buildings, and apartment developments.

The partition in kind means to physically divide the property, whereas a partition by appraisal occurs where the parties agree to retain a licensed real estate appraisal and buy the other party's interest based on the appraised value. While the law theoretically provides for these other methods, they are rarely court-ordered. Indeed, although partitions in kind are supposedly favored by law, they may be unavailable as a legal matter as a result of the Subdivision Map Act. Instead, parties frequently resolve partition actions through mediation or a jointly agreed upon settlement.

While most lawsuits in California are supposed to take two years or more, there are a number of steps that an experienced partition lawyer can take to ensure that a partition action takes in less time. As time is money, anyone considering a partition action would be well-served to find a lawyer familiar with partition actions. At Underwood Law Firm, our attorneys are frequently handling dozens of partition actions at any given time.

Like with anything in life, there are "pros" and "cons" to filing a partition action. As such, anyone considering a partition action should carefully consider the benefits and costs ahead of time. In almost every instance, it is advisable that the parties find a way to work out their differences among themselves. Indeed, the Underwood Law Firm, P.C. generally encourages and requires its clients to informally attempt a resolution of the matter prior to bringing a partition lawsuit. When this cannot be done, however, then an owner of real estate should think through the pros and cons, including:

PROS OF A PARTITION ACTION

• Light at the end of the tunnel, and the end of the hostage situation of jointly owned real estate;
• The assistance of knowledgeable counsel;
• The formal ability to ensure that all of a party's rights to their real estate are respected through the courts;
• The recovery of amounts expended for the common benefit of the commonly-owned property
• The opportunity to recover attorneys' fees and costs;
• The ability to challenge a difficult party's unreasonable claims to real estate;

CONS OF A PARTITION ACTION

• The continued interaction with a difficult co-owner, which can be emotionally draining;
• The time and money spent attending to court proceedings;
• The potential sale of the property to a third-party;

Code of Civil Procedure, section 874.010 states that "[t]he costs of partition include: (a) [r]easonable attorney's fees incurred or paid by a party for the common benefit." Interestingly, the costs of partition can also include reasonable expenses necessarily incurred by a party for the common benefit in prosecuting or defending other actions or proceedings for the protection, confirmation, or perfection of title, setting the boundaries, or making a survey of the property. (CCP § 874.020.)

As every partition case is different, the costs of a partition action can change depending on the nature of the dispute, the actions of the opposing party, the decisions of the judge in the case, and the parties' decisions about the property leading up to the filing of the lawsuit. As much as anything the decisions made by the partition lawyer can make a substantial different in the costs of the partition action.

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.

At any given time, the Underwood Law Firm, P.C. is handling numerous partition cases, and so is able to effectively and efficiently provide legal guidance in these situations.

The Underwood Law Firm, P.C. resolves joint ownership problems between all types of property owners from parents and children, siblings, and non-marital partners who own real estate together and need to sever their interests to go their separate ways. The firm assists clients with pre-partition agreements, joint sale agreements, negotiated settlements, negotiations following the filing of a partition action, and all stages of litigation of a partition action.