San Rafael Partition Lawyers

The City of San Rafael was named after the Archangel Raphael, the Angel of Healing. The city was originally founded in 1817 and later incorporated as a city in 1874. Today, San Rafael is home to over 30 different neighborhoods and residents of San Rafael who own real estate may face disputes with co-owners. Generally, the best San Rafael Partition Lawyers usually find partition action to be the best remedy for disputing co-owners in four broad categories:

• Split real estate dispute;
• Brother-Sister real estate dispute;
• Investor-Investor real estate dispute; and
• Significant other real estate dispute

Mortgagees and lienholders should be joined as parties in partition actions. Any person having or claiming interests of record, those that are actually known to the plaintiff, or are reasonably apparent from a property inspection, must be joined as defendants in the action for partition. (CCP § 872.510(b).) The term, “interest,” includes liens. (Legislative Comm. Comment to CCP § 872.510.) The term, “lien,” is defined as a mortgage, deed of trust, or other security interest in the property resulting from contract, statute, common law, or equity. (CCP § 872.010(b).)

Generally, it is not necessary to join a party who has no lien on the property at the commencement of the action and who obtains one later, but that party has a duty and right to step in and set up the lien and have it adjudged in the decree and adjusted. (see Towle Bros. Co. v. Quinn (1903) 141 Cal. 382.) Further, the court has no jurisdiction to reach into a separate partition suit, which has commenced before the execution of the mortgage by a tenant in common who were parties to that suit and take control and jurisdiction of the mortgagee’s interest. (Towle Bros. Co. v. Quinn 141 Cal. 382.)

In accordance with that rule, a mortgagee who assumes the mortgage after the partition action has begun is not made a party and does not have a right and duty to intervene as against the buyer at the partition sale even though the final decree is appealed and changed, and the purchaser has knowledge of the mortgage at the time of such sale. (see Turner v. Bank of America Nat. Trust & Sav. Ass’n (1933) 135 Cal.App. 314.) Additionally, a defendant is not entitled to the notice provided by California Civil Code section 762 when he or she is not a lienholder at the time the suit has commenced. (Turner v. Bank of America Nat. Trust & Sav. Assn’n, 135 Cal.App. 314.) Where the referee’s findings have been approved by the court in its final decree in the suit almost two months before the execution of the defendant’s mortgage, the defendant may not claim to be a lienholder of the property when the referee made his or her investigation. (Turner v. Bank of America Nat. Trust & Sav. Assn’n, 135 Cal.App. 314.)

At Underwood Law Firm, our San Rafael Partition Attorneys are well-versed in the legal remedy of partition, and are ready to discuss your legal issues.