Victorville Partition Lawyers

The city of Victorville is located in San Bernardino County and is best known as a stop along the famed Route 66 within its Old Town Victorville historic district. As a growing community and one which has a history of railroad development, Victorville residents often find themselves owning or inheriting property with another. Joint ownership of real estate, however, is no easy venture. Disagreements often arise over the use of the shared property, which leads to arguments and headaches with co-owners. In these times, a Victorville Partition Lawyer can help find a solution and provide one peace of mind as to their difficult situation. A quality Victorville Partition Lawyers find that there are at least four different scenarios that commonly lead to a partition action:

• Co-owned land a significant other wants to sell;
• Co-owned land a sibling wants to sell;
• Co-owned land a parent wants to sell; and
• Co-owned land an investor wants to sell;

Partitions are lawsuits that split up the property between multiple co-owners so that each can take their equity out of the home. The prototypical partition are between siblings, former romantic partners, or business partners. Both own parts of the property, but only one wants to end the relationship and take their money out. Partitions enable this to happen, usually ending with a court-ordered sale of the subject property. 

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.

Generally, a partition action cannot be stopped absent a valid waiver. The instances in which a court has found a valid waiver have generally 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 Victorville Partition Lawyer will be able to share information on this process with you.

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 California, 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. A top Victorville 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 Victorville Partition Attorney will be able to give you good advice on these issues.

Before the sales proceeds are distributed among the parties, a court-ordered accounting will determine the charges and credits upon each co-owner’s interest. These credits are taken out of the net proceeds before the balance is divided equally. (Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal.App.2d 539 (“Nelson”).) 

“When a cotenant makes advances from his own pocket to preserve the common estate, his investment in the property increases by the entire amount advanced. Upon sale of the estate, he is entitled to his reimbursement before the balance is equally divided.” (Nelson, 230 Cal.App.2d, at p. 541, citing William v. Koyer (1914) 168 Cal.369.)

As such, a party to a partition action must produce and gather their evidence and make sure that it is presented to the court so they can receive full credit for the value that they have added to the property. While a party may have a right to these credits under the law, ultimately, they will not be counted unless they can be presented in the proper form. An experienced Victorville Partition Attorney will be intimately familiar with these matters.

As a co-owner of property, any co-owner has an absolute right to partition unless barred by a valid waiver. (CCP § 872.710(b).) When co-owners acquire property for a specific use for a definite period, they impliedly waive the right to partition as a partition would defeat the purpose. The following paragraphs discuss how certain factors and circumstances the court may use to determine whether an implied waiver exists in Jeter v. Callahan (2023) 2023 WL 2964424.

In Jeter, Gwendolyn Jeter filed a petition in probate court to terminate her deceased grandmother’s living trust, order the Property sold, and distribute the proceeds to the sale of the trust portion of the property per stirpes in one-third portions to the children of Annie, Artice, and Lillie. Annie filed an objection to the petition, and one of Artice’s daughters made an objection to the petition at a hearing.

Alberta Lewis had six children: Annie, Lillie, Rosie, Artice, Bertha, and John. Gwendolyn was Lillie’s daughter, and Annie was the trustee of Alberta’s trust. Alberta and Lillie acquired the Property and took title as joint tenants. Alberta then created a living trust and put her interest in the Property into that Trust, designating her six children as co-trustees and beneficiaries. The Trust provided that Alberta would receive all income and profits of the Trust Property during her lifetime, and when she passed, the Property would be divided equally among the beneficiaries.

After Alberta’s passing, Rosie and Bertha also died. John then filed an action for partition and the sale of the Property. Lillie filed an answer in the partition action and a petition in the probate court regarding the internal affairs of the Trust and to establish another’s claim of ownership to property. The probate court consolidated the actions. After numerous hearings and settlement conferences, a settlement was reached. In 2011, the probate court then ordered that John receive $45,000 for his interest in the Property, and the portion that Alberta put in the Trust, would be put back with Lillie, Artice, and Annie as co-trustees and beneficiaries until they all died, in which the Property would then be liquidated, and the proceeds would be distributed to all of Alberta’s then-living grandchildren. John and his heirs, beneficiaries, or assigns’ interests in the trust were terminated, and Lillie’s undivided one-half interest in the Property was confirmed. Further, in order to sell the Property, Lillie, Artice, and Annie would have to agree and file a petition to reform the Trust.

After Artice and Lillie died, Gwendolyn brought this action. In 2021, the probate court held among other things that: (1) the 2011 Order was clear on its face, (2) the Property must be sold when Annie, Artice, and Lillie have all died, and (3) the grandchildren would receive the distribution of proceeds in equal shares. Gwendolyn appealed, contending that the 2021 Order was void because it violated the grandchildren’s due process rights and that the proceeds of the eventual sale of the trust portion of the Property should be divided per stirpes rather than per capita.

On appeal, the California Fourth District Court of Appeal affirmed the probate court’s judgment. The Court of Appeal first considered Gwendolyn’s claim that the 2011 Order violated Alberta’s grandchildren’s rights because they were not given notice and an opportunity to be heard before their Property rights were affected. The Court of Appeal determined that Gwendolyn’s due process claim was forfeited because she had not adequately preserved her due process claim for appeal. As a result, she may not raise for the first time, issues she did not adequately raise in probate court. (Foxcroft Productions, Inc. v. Universal City Studios LLC (2022) 76 Cal.App.5th 1110, 1113.)

Gwendolyn also did not supply the Court of Appeal with a record sufficient to establish her due process violation claim. Further, the Court of Appeal held that even if Gwendolyn had not forfeited her due process claim, that claim would fail anyway since generally, a party may assert only her own legal rights and not those of others. (In re Q.R. (2020) 44 Cal.App.5th 696, 702-703.) Thus, the due process right to notice and opportunity to be heard, belonged only to those persons who at the time of the 2011 Order proceedings had interests in the Property, not Gwendolyn.

The Court of Appeal further reasoned that when Alberta first created her Trust, she designated her six children as co-trustees and beneficiaries, whom upon her death, the Property would receive the distribution of the Property equally. The Trust made no mention of the grandchildren. Additionally, a provision in the 2011 Order created a future interest in the grandchildren conditioned on the Lillie, Annie, and Artice. This provision created a contingent remainder, which is “an estate and not a mere expectancy.” (Roth v. Jelley (2020) 45 Cal.App.5th 655, 669.) As such, the 2011 Order did not deprive her of a pre-existing interest in the Property, and the proceedings that led to the 2011 Order did not violate her due process rights.

Gwendolyn also alleged that the probate court’s order that the Property be sold when Alberta’s remaining child, Annie, died, improperly restrained her statutory right as an owner of what was previously Lillie’s undivided one-half interest in the Property, to partition and sell the Property. The Court of Appeal held that she held the Property inherited from Lillie precisely how Lillie held it, “subject to the same conditions and equities that attached to it in her hands.” (Carlson v. Carlson (1932) 124 Cal.App.207, 210.) As a tenant in common of the Property with the Trust, Lillie would have had an absolute right to partition, absent a valid waiver. (CCP § 872.710(b).) However, the Court of Appeal determined that a valid waiver existed because Lillie prevented John’s previous attempt to partition and sell the Property.

During the earlier proceedings, Lillie impliedly waived her right to partition by agreeing with the other tenants in common to: (1) buy out John’s interest, (2) put the trust portion of the Property back in the Trust for the lifetime of Lillie, Annie, and Artice, (3) sell the Property and distribute the proceeds to Alberta’s grandchildren who were alive when the last of the three siblings passed, and (4) to not sell the Property unless the remaining three siblings agreed. Thus, allowing Gwendolyn to partition and sell the Property before Annie died would frustrate Lillie and the co-owner’s plans to keep the Trust portion of the Property in the Trust for Annie’s lifetime benefit and not to sell it before Annie died. Based on this implied waiver, the Court of Appeal held that the probate court did not err in determining that the Property must be sold only when Lillie, Annie, and Artice all died.

In determining the manner of distribution, the Court of Appeal noted that the 2011 Order did not specify whether the distribution should be made per capita or per stirpes. In the event that a trust instrument fails to specify the manner in providing for issue or descendants to take, “the property to be distributed shall be distributed in the manner provided in Section 240.” (Prob. Code, § 245(a).) Probate Code section 240 provides “the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living.” Therefore, each of Alberta’s grandchildren who are living at the time Annie dies are entitled to an equal share of the Trust portion of the Property.

In determining whether an implied waiver exists, courts look to various factors such as the parties’ intent or specific use of the property. As there are many different ways to waive the right to partition, you may benefit from good legal advice on the topic if you are considering it as an option. If you find yourself contemplating a partition action, or faced with defending one, then please contact Underwood Law Firm, P.C. for an initial consultation.

Learn more here.