San Francisco Partition Lawyers

San Francisco, the 17th most populous city in the U.S. and the fourth most populous city in California, is a cultural, commercial, and financial center in the state’s northern region. As one of the largest and oldest cities in California, San Francisco’s residents frequently confront problems with jointly owned, inherited properties. San Francisco Partition Lawyers often find that co-ownership issues fall into four broad categories:

• Family owned real estate where only one party wants to sell;
• Former romantic partners who jointly own real estate where only one party wants to sell;
• Jointly owned real estate where only one party wants to sell;
• Partnership real estate where only one party 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.

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.

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. (Hunterv. Schultz (1966) 240 Cal.App.2d 24.)

A partition action can always be resolved informally at any time prior to the first day of trial. 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.

Even when a party has proved that they have a right to partition, that party’s right to partition may be defeated if the party impliedly waived that right. This raises a brand-new set of issues for litigants as they attempt to figure out whether they have a right to partition as a matter of law.

When asserting an implied waiver defense, a litigant must have sufficient evidence of conduct suggesting an implied waiver of one’s right to partition a property. To assert an implied waiver defense, and to prevent the partition of your property, a partition lawyer can be of great assistance.

Lipscomb v. Girardi, 2018 WL 1127686 showcases one of the several ways a party can waive their right to partition under California law.

In Lipscomb, Lipscomb filed a partition action against multiple other co-owners to sell a building and parking license. (Id., at 2.) The case proceeded to a bench trial, where the trial court upheld Lipscomb’s right to partition the property by sale and entered an interlocutory judgement of partition. (Id., at 2.) The trial court reasoned that Lipscomb did not waive his right to partition because implied waiver was limited to circumstances where property was bought to guarantee a stream of monthly income through a written lease for a term of years, and partition was inconsistent with that purpose. (Id., at 3.) Following the trial court’s holding, the Girardi defendants appealed to the Court of Appeals.

In their appeal, the Girardi defendants contended that the trial court erred in finding that Lipscomb did not impliedly waive his right to partition. (Id., at 2.)

In Lipscomb, the Court of Appeals reversed the trial court’s interlocutory judgement of partition, reasoning that a partition of the property was inconsistent with the purpose for which the property was acquired. The appellate court stated:

“The evidence included the following: Girardi occupied 1126 Wilshire as his law offices for 20 years before the parties agreed to purchase 1122 Wilshire. Lipscomb understood that Girardi would be expanding his offices into the adjacent 1122 Wilshire building, and that Girardi would be making tenant improvements to modify the premises to meet the needs of his firm. Lipscomb testified that he ‘understood that 1122 was being purchased to provide Mr. Girardi the opportunity to expand his business operations from 1126 into both 1126 and 1122.’ After the sale closed, G & K expended about $2.2 million to renovate 1122 Wilshire, including opening up a common wall, so that the two buildings could function as a single property.” (Lipscomb, at 5.)

The appellate court reasoned that based on the evidence, Lipscomb understood that the 1122 Wilshire building was being purchased to expand Girardi’s office. Given that Lipscomb understood the purpose for which the 1122 Wilshire building was being used for, the appellate court found that a partition would frustrate the purpose for which the 1122 Wilshire building was acquired.

Therefore, the appellate court found that there was sufficient evidence for a trier of fact to find that Lipscomb impliedly waived his right to partition, and support the Girardi defendants’ contention that waiver of partition was not limited to the narrow circumstances specified by the trial court. The appellate court then supported its contention by citing various examples of waiver of partition addressed in American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014 (AMI):

“In Miranda v. Miranda (1947) 81 Cal.App.2d 61, plaintiff, the former wife of defendant, brought an action for a partition of residential property standing in the names of both parties as joint tenants. As a part of a divorce action, the parties had entered into a property settlement agreement which provided that the family home was to remain in the name of the parties so long as the wife did not remarry and so long as the property was occupied by her as a home for herself and the children. The former wife sought partition of the property while she was still occupying the home with the children and had not remarried. The Miranda court held that the agreement constituted a waiver of the right of either party to partition the property so long as the restrictive conditions existed…

Similar to Miranda is the case of Schwartz v. Shapiro (1964) 229 Cal. App.2d 238. In Schwartz, the two parties purchased real property as coowners and executed a written agreement that provided that one party would not sell his one-half interest without giving the other coowner the right to purchase it at a price not in excess of the original purchase price.... The Schwartz court held that the agreement between the parties had modified the ‘absolute’ right to partition and that neither coowner was entitled to a partition of the property without first offering to sell his interest to the other coowner at the price paid for the property....

‘Implied’ waiver of partition has [also] been found where cotenants agreed to a plan designed to develop property over a period of time (Thomas v. Witte(1963) 214 Cal.App2d 322) or invested in property which was subject to a long-term lease with a view toward obtaining a secure source of investment income (Pine v. Tiedt (1965) 232 Cal.App.2d 733). The Pine court, in denying the right of partition to a coowner with the largest undivided interest in the land, ... stated [the minority owners' contention] that knowing the nature of the venture and its purpose—to provide a continuous income to the investors under a long term lease with a corporation organized to operate a sanitarium on land they would acquire—[the coowner] impliedly agreed to waive the right of partition when he executed the lease ... and conveyed to the investors the undivided fractional interests in the land. There is merit to this contention under the rule that an agreement to postpone partition may be implied where the purpose for which the property was acquired by the parties would be defeated by partition. [Citation.]’ (Pine, supra, 232 Cal.App.2d 733, at p.740.)’ ”

Therefore, it was Lipscomb’s understanding that the 1122 Wilshire property was being purchased to expand the Girardi defendants’ offices that constituted conduct suggesting an implied waiver of partition.

In turn, the appellate court reversed the trial court’s interlocutory judgement of partition and remanded the case back to trial court to decide whether Lipscomb impliedly waived his right to partition.

Getting a judgment of partition is often only the first step in partition litigation. Even if a litigant has a right to partition a party, contrary evidence brought by the other party may refute that right to partition by suggesting that the litigant waived their right.

As each case is unique, property owners would be well-served to seek experienced counsel familiar with the intricacies of partition actions and the defenses to partition that follow. At Underwood Law, our knowledgeable attorneys are here to help. If you are attempting to assert an implied waiver defense, are worried about your ability to get a partition, or if you just have questions, please do not hesitate to contact our office.

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