Westminster Partition Lawyers

Westminster is a city in western Orange County, California, and was originally founded as a Presbyterian temperance colony. It has one of the largest Vietnamese populations in the United States, and is known as “Little Saigon.” It is surrounded by some of Southern California’s favorite attractions, such as Disneyland, Knott’s Berry Farm, world-class beaches, and Catalina Island. According to Redfin, in March 2024, the median sales price was $950,000 and homes stay on the market for 18 days. Westminster residents who own real estate may face disputes with co-owners. Generally, the best Westminster Partition Lawyers usually find partition action to be the best remedy for disputing co-owners in 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;

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 Westminster Partition Lawyer will be able to share information on this process with you.

The first step to a partition action is to petition the court for a partition of the property. In order to petition the court, a litigant must file a legally valid complaint for partition. As noted above, the litigant must be a co-owner of the subject property in order to have standing to file a partition complaint. (CCP § 872.210.)

Second, after filing the complaint, a litigant must then obtain an interlocutory judgment of partition in the correct procedural form. An interlocutory judgment is a temporary judgment ordered before the close of trial during the litigation of the case. Under Code of Civil Procedure section 872.720, the court must enter an interlocutory judgment when the court finds that the Plaintiff in a partition action is entitled to a partition. In order to obtain an interlocutory judgment, a litigant must establish their right to partition by proving they have an ownership interest in the subject property.

Third, if the court finds that a litigant has an ownership interest in the subject property and grants an interlocutory judgment of partition, the court will then appoint a partition referee to oversee the partition of the property. A partition referee is a neutral third party appointed by and accountable to the court to assist the court in matters related to partition actions. (CCP § 873.510.)

Fourth, Once the referee has provided the court with their report, the court must determine the proper method for partitioning the subject property. The court determines the proper method of partition by determining which method of partition is more equitable.

Fifth, once the court has determined the proper method of partitioning the subject property, the court will then order a final judgment of partition, and the property will be partitioned according to the proper method determined by the court. If the court orders a partition by sale, there must be an accounting to distribute the proceeds of the sale in strict compliance with the requirements of the evidentiary code. A top Westminster Partition lawyer will be familiar with the process.

Generally, anyone considering filing a lawsuit should consider all of their alternatives, including an informal resolution of the problem. This can take the form of a discussion with the other owner or owners about agreeing to sell the property, negotiating with the co-owner to create a formula to divide the proceeds from the sale, or retaining a lawyer to engage in a mediation with the other owners.

Throughout the partition process, and even on the day of trial, any of the owners can make an agreement about the sale of the property. This can happen through a phone call, through negotiations between the parties' lawyers, or through a mediation session with a retired judge or trained mediator. There are many benefits from a mediation session, including confidentiality provisions contained in the law in Evidence Code sections 1115 through 1129.

Specifically, Evidence Code section 1119, subdivision (a), provides "no evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given." A knowledgeable Westminster Partition Attorney will be able to give you good advice on these issues.

A partition action frequently involves disputes related to the allowance for improvements by one joint owner or the other. The court may, in all partition cases, make an order for an allowance, accounting, contribution, or other compensatory judgment among the parties in accordance with the principles of equity. (CCP § 872.140.) For instance, the court may make an equitable adjustment in order to offset the use value of the property against the improvement expenses. (see Hunter v. Schultz (1966) 240 Cal.App. 2d 24, 31.)

Code of Civil Procedure section 872.140 allows the court to make such orders for compensatory adjustments for items such as common improvements, unaccounted rents and profits, and other matters where contribution may be required. (Cal. L. Rev. Comm. Comment to CCP § 872.140.) An example of these types of improvements could be for remodeling a bathroom, rebuilding a deck, or painting the outside of the house. The property must be divided in a manner that allocates an individual any part that he or she has improved or that individual's predecessor in interest, to the extent that it is practical and can be done without materially injuring the rights of the other co-owners. The determination of a division of allocation does not include the value of the improvements. (CCP § 873.220.) An experienced Westminster Partition Attorney will be intimately familiar with these matters.

In determining who is responsible for the expenses in partition actions, the Code of Civil Procedure, section 874.040 provides that “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.”. Furthermore, as per the California Code of Civil Procedure 874.010, the costs of partition include, “Reasonable attorney’s fees incurred or paid by a party for the common benefit.” How do courts interpret these provisions to ascertain financial liabilities of the parties related to such expenses incurred in partition actions? The following paragraphs discuss the rules that govern apportionment of expenses in partition actions in the case, Gentino v. Yaghoobia (2023) 2023 WL 629982.

In Gentino, defendant Bizhan Yaghoobia owned the Property. Plaintiff Robert Gentino, trustee of the BN Family Trust, claimed a fifty percent ownership interest in the property and filed a complaint against the defendant for quiet title, conversion, accounting, and partition of the property.

The trial court found that Gentino failed to establish an ownership interest in the property and dismissed the case without prejudice. Defendant moved for an order awarding attorney fees against plaintiff under section 874.010(a). The trial court denied the motion. Yaghoobia appealed from the trial court’s order. The court of appeals affirmed the order.

The California Second District Court of Appeal reviewed the trial court’s order regarding attorney fees for abuse of discretion. (Orien v. Lutz (2017) 16 Cal. App. 5th 957, 966.) It held that attorney fees are not recoverable as costs unless expressly authorized by statute or contract. (§ 1021; Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 127.) The court noted that section 874.010(a) states that in partition actions, the trial court may award “[r]easonable attorney’s fees incurred or paid by a party for common benefit.”

The purpose of the statute, the court remarked, “was to place the burden of the expense for services of counsel upon those parties sharing in the benefits realized from such services, and that burden is specifically placed upon the parties ‘entitled to share in the lands divided,’ that is, the owners.” (Steward v. Abernathy (1944) 62 Cal.App.2d 429, 431-432; see Capuccio v. Claire (1932) 215 Cal. 518, 525.)

The court noted that Gentino initiated the action claiming an interest in the Property and seeking a partition but the trial court determined that the Gentino failed to establish an interest in the property. Therefore, the court held that as per the trial court’s finding, there was no “common benefit” between the parties, based on which, the court also held that equity did not support the granting of Yaghoobia’s motion for attorney fees. Thus, the court of appeals affirmed the trial court’s order holding that it acted well within its discretion in denying Yaghoobia’s motion for attorney fees under section 874.010 (a).

A court’s determination of responsibilities related to expenses in a partition action depends on the facts and circumstances of each particular case. As seen above, the outcome in the underlying partition cause of action can affect how the courts rule on the apportionment of such expenses between the parties. As a party to a potential partition action, it is helpful to be aware of the principles and statutes governing partitions. As such, you may benefit from good legal advice on the topic. 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.