Partition Attorney in Sacramento and Surrounding Areas

Partition Action

What is a Partition Action?

A partition action is a legal process to divide a California real estate equitably among its co-owners. In California, partition actions are governed by Code of Civil Procedure §§872.010–874.240. A partition action can help force the sale of property fairly and equitably among joint owners when there is disagreement where one or more co-owner of a property may want to sell the property, but another co-owner does not agree to sell.

When spouses and state-registered domestic partners have property disputes involving the dissolution of property that is considered community property, such disputes are handled as matters of family law.

When is a Partition Action Necessary?

The right to a partition action is absolute in California and available whether an owner has a small or large ownership interest in property or land. Any owner can file a Partition action at any time, absent a waiver. Common situations where a joint owner may seek a partition action is sought include:

1-Cases among family members who co-own property without an ownership agreement;
2-Owners who were formerly in a romantic relationship but not legally married; and
3-Business partners who did not properly document their co-ownership obligations.

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Our partition attorneys in California can help resolve real estate co-ownership disputes that have arisen due to a variety of frustrating situations. For example, one co-owner of property may be paying the mortgage, while another co-owner lives at the property without making any contribution to the property.

A partition may also become necessary when fellow investors purchase property, but their business relationship has suffered. Co-owners that were formerly in a romantic relationship when they purchased property together may also need to seek a partition action if one of the co-owners refuses to sell the property.

Three Types of Partitions

There are three methods of Partition provided by state law: (1) Partition by Physical Division, (2) Partition by Sale, and (3) Partition by Appraisal.

Partition by Physical Division

A Partition by Physical Division, also known as “Partition in Kind,” typically applies to properties involving acreages, such as rural properties or undeveloped land. Single-family homes are generally ineligible for this type of partition.

Seeking a Partition in Kind can be complex due to potential requirements to comply with the California Subdivision Map Act, local zoning ordinances, and a general plan for the area where the property is located. The parties cannot use partition to create a subdivision with individual lots and streets laid out in a manner that would circumvent the Subdivision Map Act.

Partition by Sale

A Partition By Sale allows a co-owner of real property to force a sale of the entire property despite the unwillingness of any co-owner. Unless a co-owner has signed a waiver, an owner has an absolute right to partition his or her interests in the property and force a sale of the property. A waiver can appear in a Tenant In Common (TIC) Agreement.

A co-owner seeking a Partition by Sale must show that under the circumstances, the sale and division of the proceeds would be more equitable than the division of the property. The Partition by Sale can be completed in a variety of ways, including private sale, public auction, or by listing the property for sale with the assistance of a licensed real estate broker.

Partition by Appraisal

A Partition By Appraisal allows co-owner(s) to purchase the interest of the other co-owner(s) based on a value as determined by a court-ordered appraisal.

This partition method is available if the interests of all parties are undisputed and the parties agree in writing to proceed with a Partition by Appraisal.

How to Initiate a Partition Action

A Partition action is a legal action filed in Court that names all parties who have or claim an interest in the subject property, including owners, lienholders, lenders, and holders of future estates. A partition action is initiated when the petitioner files a complaint for Partition in the county in which the property is located.

After the complaint is filed, a Notice of Pendency of Action must also be filed in the county in which the property is located, which notifies everyone that has interest in the property that a legal action involving the property is in process. The complaint and Notice of Pendency of Action must be served on all named defendants.

There is no right to a jury trial on the issue of Partition in California. The Partition action proceeds as a court trial, and a judge renders a decision on the determination of interests of the parties and the manner of Partition. The judge may also appoint a referee to make recommendations and oversee the Partition process.

Can a Partition Action Be Settled through Mediation?

Yes, a partition action can be settled through mediation before or after a partition complaint has been filed. Like any legal dispute, parties are encouraged to settle a partition action through settlement discussions or mediation. One common settlement option is when owners cooperate in the sale of the property by mutually agreeing to engage a broker to list and market the property for sale.

Alternatively, owners can agree to a “buy out” whereby one or more co-owners buys out the interest of one or more co-owners that wish to sell the property.

Common Issues that Arise in Partition Actions

Some common issues in partition actions include: (1) when one owner has paid most or all operating expenses for the property and as a result that owner is seeking an offset; (2) when one owner has damaged the property or taken action which has caused the value of the property to depreciate; and (3) tenancy issues, such as when an owner claims tenant rights and refuses to deliver possession of the property upon sale.

How Much Does a Partition Action Cost?

A Partition action should be filed with the assistance of an experienced real estate attorney. The cost of a Partition action can vary but typically involves the cost of a title report or litigation guaranty, legal fees and costs for handling the lawsuit through trial, and referee costs. A Partition action can be “uncontested” if the defendant(s) do not file a responsive pleading to the complaint.

If the partition action is “uncontested,” the Court will still require a detailed prove-up hearing before rendering a judgment for Partition. The amount of legal fees escalate when the Partition action is contested or involves additional issues in dispute between the owners.

Can I Recover Partition Attorney Fees?

The short answer is yes. California Code of Civil Procedure §874.040 states 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.” You may wonder, what does “equitable” mean? Generally, it means in a “fair” or “just” manner under the law, and in practice, the Court has discretion in determining what it considers to be equitable given the circumstances of the case.

An experienced partition attorney can ensure that facts are included in the record, which shows that the recovery of attorneys’ fees for their clients is equitable and warranted. A court may look at the actions or inactions of the parties in causing unnecessary delays and extending the litigation when deciding whether or not to grant such an award.