Poway Partition Lawyers

The City of Poway was incorporated in 1980 and nicknamed “the City in the Country” as the land was used for farming purposes. As Poway shifted away from agriculture, it became home to a residential community for those who worked in the San Diego area. Today, over 76% of Poway housing units are owner occupied, which suggests that many residents own homes jointly. Jointly owned real estate may become a problem if a dispute arises between co-owners.

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.

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.

First, a partition action is filed. A partition action can be filed if one co-owner of real property or a piece of real estate wishes to sell the property or piece of real estate in question but the other co-owners or co-tenants do not wish to sell their ownership rights. 

Second, the court may appoint a court referee to oversee the sale of the property in question. The sales procedure includes that all parties agree to the terms and conditions of the sale in writing. If the parties can not agree, as partition actions are usually very contested issues, then the referee that the court appointed may recommend terms and conditions to the court. Then the court will hold a hearing to decide whether or not to accept those terms and conditions. 

Third, in some states and counties, the property’s value will be appraised via a third party or another property appraisal with no ties to any of the parties. While this is not required in all states, it is recommended to make sure that all parties are on the same metaphorical page as to the potential sale proceeds of the property in question. 

Fourth, the referee will conduct the sale in the method most agreeable to all of the party’s goals. This can be via a public auction or a private sale. Regardless of the specific method of partition by sale, the court will determine if the sale was “fair.” If it is decided that the property’s sale proceeds had a lack of proper notice, the sale amount is not within reasonable the value of the property, or if the proceeds were unfair- the court would rule that the property will be up for sale again. 

Lastly, the court will order that the proceeds of the sale, minus any court litigated or approved offsets or costs, will be distributed equitably amongst all of the co-owners or people with interest in the property.

Generally, a partition action is the best remedy for disputing co-owners in four broad categories:

• Investor-Investor shared ownership of property;
• Boyfriend-Girlfriend share ownership of property;
• Brother-Sister shared ownership of property; and
• Parent-child shared ownership of property

At the conclusion of a partition action, “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.” (CCP § 874.040.) Generally, the costs of partition include: (a) reasonable attorney’s fees incurred or paid by a party for the common benefit, (b) the fee and expenses of the referee, (c) the compensation provided by contract for services of a surveyor or other person employed by the referee in the action, (d) the reasonable costs of a title report procured pursuant to section 872.220 with interest thereon at the legal rate from the time of payment or, if paid before commencement of the action, from the time of commencement of the action, and (e) other disbursements or expenses determined by the court to have been incurred or paid for the common benefit.” (CCP § 874.010.) Recently, the California Court of Appeal addressed the apportionment of attorney fees and costs when the fees are incurred by a party who prolongs the dispute in a case decided by the Second District Court of Appeal known as Nyberg v. Moacanin (2020) 2020 Cal.App.Unpub.LEXIS 2990.)

There, four siblings inherited a parcel of real property and a commercial building as tenants in common, each with a 25% interest. Frank and John Nyberg sought to partition the building and later filed a motion for summary adjudication on their cause of action for partition. The trial court issued an interlocutory judgment for partition. The Nybergs then moved for attorney’s fees and the trial court granted the motion, finding that the Moacanin’s behavior caused the parties to incur unnecessary fees as Moacanin unnecessarily and counterproductively communicated with the Nybergs’ attorney prior to retaining an attorney himself, forcing the Nybergs to file the summary adjudication motion and then the receiver motion. Moacanin appealed.

The Court of Appeal affirmed, finding that Code of Civil Procedure “sections 874.010 and 874.040 provide numerous avenues for trial courts to adjust the allocation of costs if, for example, fees are incurred for purposes that unduly exacerbate the dispute or do not provide a common benefit to all parties.” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 968.) The Appellate Court held that “a court may find that fees incurred advocating a position of limited merit are not for the common benefit and should be borne by the party pressing such spurious matters.” (Forrest v. Elam (1979) 88 Cal.App.3d 164, 174.) Because Moacanin hindered the partition process throughout the case, the Appellate Court determined that the attorney’s fees order was proper. Thus, Nyberg explains the consequences and allocation of attorney’s fees when a party unnecessarily prolongs the litigation.

In order to start resolving these situations, you should contact an experienced Poway Partition Lawyer as soon as you are ready to start the next chapter of your life.

Learn more here.