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Partition in California

Last edited 245 days ago by Ted Broomfield

⁠

SUMMARY

When more than one person owns a parcel of real property and the owners cannot agree on how to manage that property, any owner can sue for partition. Partition is a type of lawsuit in which the Court can make an order what to do with real estate. Surprisingly to many people, it is well within the Court’s power to force a sale of real property. The interesting aspects to partition include that it is a favored procedure, and results first in an interlocutory judgment, which is a temporary judgment if partition is allowed, then a partition referee is appointed, who oversees and ensures the court’s orders are executed, before a final judgment is entered.

DETAILS

Determining the Applicable Law

A prospective plaintiff in a partition action must first determine the applicable code. There are three potential governing bodies of law: (1) Traditional Partition Rules; (2) California Heirs Property Partition Act; and (3) New Partition Rules, pertaining to Tenants in Common. Which body of law applies, depends on when the action is filed, as well as how title to the property is held, and by whom.

Traditional Partition Rules apply only to actions filed before January 1, 2022, as well as all Partition Actions filed after December 31, 2022, where title is NOT held as Tenants in Common.

The California Heirs Property Partition Act rules apply only to actions filed between January 1, 2022, and December 31, 2022, and to property called “Heirs Property.” [

Code of Civil Procedure section 874.312⁠

]. Generally, “Heirs Property,” is defined as that property in which title was acquired title from a relative, either living or deceased that at the time the partition action is filed has at least 20% ownership by persons who are related. [

Code of Civil Procedure section 874.312⁠

]. The

California Code of Civil Procedure sections 874.311 to 874.323⁠

codify the California adoption of the Uniform Partition of Heirs Property Act.

Current Partition Rules apply to all Partition Actions filed after December 31, 2022, and governs only partition of properties where title is held as Tenants in Common.

Results of Partition Action

Generally, there are three (3) possible results to a partition action:

(1) Partition is denied;

(2) Partition in kind, meaning physical and title division of the property is granted [Code of Civil Procedure section 874.318];

(3) Sale of the property [

Code of Civil Procedure section 874.320⁠

], either entire, or sale of all interests to render any remaining partition procedures moot.

Partition of real property is a matter of right, and a favored remedy at law

A co-owner of real or personal property may commence an action for partition [Code Civil Procedure section 872.210], as a matter of right [Code of Civil procedure section 872.710(b)]. “The primary purpose of a partition suit is, as the terminology implies, to partition the property, that is, to sever the unity of possession.” [

Schwartz v. Shapiro (1964) 229 Cal.App.2d 238⁠

, 257.]

“Partition is a remedy much favored by the law.”

[LEG Investments v. Boxler (2010) 183 Cal.App.4th 484⁠

, 493.] “The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land.” [

LEG Investments v. Boxler (2010) 183 Cal.App.4th 484⁠

, 493 [internal quotations omitted]].

Between the tenants in common, there is no change of title, it is simply dividing up what the parties own. The tenants in common retain exactly the same proportional interest. Following the partition, the interest is severalty, rather than in common. [

14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396⁠

, 1404-1405].

General Procedure; Atypical of California Civil Procedure

The Partition procedure is atypical to other California Civil Procedure. As in other procedures, a plaintiff files a complaint, serves process, and the defendant must either file a responsive pleading or be subject to default.

However, thereafter, the court makes three determinations: (1) the interests of the parties at

Code of Civil Procedure section 872.610⁠

et seq.; (2) determination of the right to partition at

Code of Civil Procedure section 872.710⁠

et seq.; and (3) determination of the manner of partition at

Code of Civil Procedure section 872.810⁠

et seq.

These determinations are made via an interlocutory judgment. Interlocutory means an order, decree or judgment that is given provisionally during a case, and before the final disposition of the case.

Generally, the court’s interlocutory judgment is to either: (a) partition the property in kind, meaning ordering the property separated by title, and preferably, physically separated, if possible. [

Code of Civil Procedure section 872.810⁠

]; or (b) partition the property through sale [

Code of Civil procedure section 872.820⁠

Only after the partition is completed is a later final judgment entered by the court.

Essential Elements and Pleading

The material allegation of facts [

Code of Civil Procedure section 431.10⁠

] that must be “state[d....as] fact[ual allegations]...constituting the cause of action, in ordinary and concise language,” on the complaint [

Code of Civil Procedure section 425.10⁠

] and put at issue [

Code of Civil Procedure section 588⁠

] on the face of the complaint, so as not to be subject to demurrer [Code of Civil Procedural , as well as proven on the preponderance of evidence standard are:

(1) Plaintiff has standing by being a co-owner of real property;

(2) there are other co-owners of the property;

(3) the co-owners cannot agree on how to manage/dispose of the real property;

(4) no waiver.

If a title report is required, it is best practice that the plaintiff obtain such a title report and attach it to the complaint. [

Code of Civil Procedure section 872.220⁠

Moreover, immediately after filing, the plaintiff[s] is required to file a Lis Pendens with the County Recorder’s Office of the County where the real property is located. [

California Code of Civil Procedure 872.250⁠

]. If partition of other real property is sought in the same action, a supplemental notice must be filed. [

California Code of Civil Procedure 872.250⁠

Any answer must state the answering defendant’s interest in the property, if any, what allegations the defendant denies, and if the defendant seeks sale. [

Code of Civil Procedure section 872.410⁠

]. To the extent that the defendant has a lien on the property, the answer must so state. [

Code of Civil Procedure section 872.420⁠

Generally, cross claims are unnecessary in partition. Unlike traditional civil procedure, where affirmative relief is prohibited [

Code of Civil Procedure section 431.30⁠

(c)], except offset [

Code of Civil Procedure section 431.70⁠

], is not available, the”...answer may set forth any claim the defendant has for contribution or other compensatory adjustment.” [

Code of Civil Procedure section 872.430⁠

Interlocutory Determination via Summary Judgment

Partition actions follow an unusual procedure in that the court conducts an initial trial to determine whether the plaintiff has a right to partition the real property. [

Code of Civil Procedure section 872.210⁠

“If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” [

Code Civil Procedure section 872.720⁠

(a)].

The procedure for the initial trial may be a Demand for Trial [Code of Civil procedure section 872.610 et seq.] or a Motion for Summary Adjudication. [

Code Civil Procedure section 437c⁠

A plaintiff may move for summary judgment/adjudication if it is contended the there is no defense to the action. [

Code Civil Procedure section 437c⁠

,, subdivision (a)].

Initially, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, meaning that on the applicable standard, the evidence proves each essential element. [

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826⁠

, 850]. So, in a partition action, the plaintiff has the initial burden of proving a prima facie case for partition: (1) Plaintiff has standing by being a co-owner of real property; (2) there are other co-owners of the property; (3) the co-owners cannot agree on how to manage/dispose of the real property; (4) no waiver.

The plaintiff in a partition action then has the burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. [

Code Civil Procedure section 437c⁠

, subdivision (p)(1)].

Procedure after Interlocutory Judgment is granted; Execution of In-Kind Division or Sale

If the court determines that there is a right to partition the property, the court enters an interlocutory judgment for partition. [

Code of Civil Procedure section 872.720⁠

The interlocutory judgment for partition determines the interests of the parties in the property, orders the partition of the property, and determines the method of partition. The court may determine that partion in kind is appropriate, under [

Code of Civil Procedure section 872.810⁠

], or, in lieu of dividing the property, sale and division of the proceeds would be more equitable than division of the property. [

Code of Civil Procedure section 872.820⁠

Only after the partition is completed is a later final judgment entered by the court.

Order for Sale of Property

If an in-kind partition, meaning physical and title division of the property, is not possible under

Code of Civil Procedure section 874.318⁠

, the court may order the entire property sold. [

Code of Civil Procedure section 874.320⁠

The method of the sale is at the discretion of the court, with options including auction, sealed bid or open-market sale.

If the court orders an open-market sale, rather than a sale by auction or sealed bids, then the Court shall appoint a real estate broker to conduct the sale. The court-selected broker shall offer the property for sale for no less than the fair market value established by the appraisal proceeding earlier in the case. If the broker is not able to obtain an offer at or above the court-established fair market value within “a reasonable time”, then the court may approve lower offers, may approve lowering the listing price, or may order the property sold at auction.

If the owners of the property are not able to agree on the value of the property, then the Court will appoint a disinterested real estate appraiser to determine the fair market value. [

Code of Civil Procedure section 874.316⁠

]. The court-appointed disinterested real estate appraiser performs an appraisal, and based thereon, the court determines the fair market value of the selling owner’s interest.

After the court determines the fair market value of the selling owner’s interest, there is a limited period of time for existing owners to buy-out the interest of the owner seeking partition. During this limited time period other existing owners have the opportunity to buy-out the interest of the owner seeking partition. These other existing owners buy-out the interest of the owner seeking partition by “paying the entire price into the court”. [

Code of Civil Procedure section 874.317⁠

Under the authority of this same code section, the purchasing owners may also seek court permission to purchase the interests of co-owners who were served with the complaint but did not appear in the action. If all the fractional property interests are sold through these buy-out provisions, leaving no plaintiff seeking partition, then the partition process ends without the traditional sale of the entire property.

If the fractional interests of the owners seeking partition are not purchased by the other owners, and if the court does not find that partition in kind, meaning division of the property rather than sale, is appropriate under

Code of Civil Procedure section 874.318⁠

, then the Court shall order the entire property sold under

Code of Civil Procedure section 874.320⁠

Partition Referee

If the real property in question is held as tenants in common, then the procedural rules for its partition sale will be governed by the new rules in the Partition of Real Property Act for all actions filed after January 1, 2023. However, the “New Rules,” incorporate rules under the Traditional Rules, including those applying to a Partition Referee.

The Partition of Real Property Act retains the potential role of a Partition Referee in sales of real property. California Courts have explicit authority to appoint a Partition Referee to manage the sale of real property under partition. [

Code of Civil Procedure section 874.315⁠

]. Code of Civil Procedure section 874.315 [of the new act] if appointed, the Referee “shall be disinterested and impartial and not a party to or a participant in the action”. [

Code of Civil Procedure section 874.315⁠

]. The new act “supplements the other provision of this title”, include all of the prior-existing rules relating to appointment and conduct of a Partition Referee. [

Code of Civil Procedure section 874.313⁠

(b)].

A Partition Referee may be necessary if one of the property owners refuses to cooperate with the court-appointed real estate broker. Examples of that lack of cooperation could include refusal to signing necessary listing and sale documents or refusal to cooperate by allowing access to the property.

A significant procedural addition in the Partition of Real Property Act is a procedure for existing owners to stop the partition sale of the property by buying out the interest of the owner seeking partition.

SUMMARY

DETAILS

Determining the Applicable Law

Results of Partition Action

Partition of real property is a matter of right, and a favored remedy at law

General Procedure; Atypical of California Civil Procedure

Essential Elements and Pleading

Interlocutory Determination via Summary Judgment

Procedure after Interlocutory Judgment is granted; Execution of In-Kind Division or Sale

Order for Sale of Property

Partition Referee

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