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.

Frequently Asked Questions

What is a partition action, and in what situations might it be necessary to initiate one?

A partition action is a legal proceeding used to divide or sell jointly-owned real property when co-owners cannot agree on how to manage or dispose of the property. It may become necessary in situations where co-owners have differing goals or interests. Common scenarios include disputes among family members inheriting property, conflicts between business partners holding real estate jointly, or disagreements between former spouses after a divorce. In a partition action, the court can order the sale of the property, with the proceeds divided among the co-owners, or it may physically divide the property if that's a feasible option. It's a legal remedy designed to resolve disputes and ensure that each co-owner's rights are protected in situations where co-ownership has become untenable or contentious.

How can your law firm assist me in pursuing or defending against a partition action involving jointly-owned property?

Our law firm specializes in assisting clients in pursuing or defending against partition actions involving jointly-owned property. Whether you are seeking a partition to divide or sell the property or defending against an unwanted partition initiated by a co-owner, our attorneys provide tailored legal strategies to protect your interests. We can guide you through the entire legal process, from assessing the feasibility of partition to filing or responding to partition lawsuits. Our goal is to secure the best outcome for your unique situation, whether that involves negotiating a favorable resolution, ensuring a fair division of proceeds, or defending your right to retain ownership. With our expertise in real estate law and extensive experience in partition actions, we work diligently to achieve a resolution that aligns with your objectives while safeguarding your rights and financial interests.

What are the different types of partition actions, and how do they differ in terms of process and outcomes?

Partition actions can take different forms, depending on the circumstances and the desired outcome:

Partition in Kind: This type involves physically dividing the property among co-owners. It works best for properties with multiple units or parcels that can be divided without significantly reducing their value. Each co-owner receives their portion, which may not always be equal in value.

Partition by Sale: In cases where physical division is impractical or undesirable, the court may order the sale of the property. The proceeds are then divided among the co-owners based on their ownership interests. This type of partition action is most common and often results in a sale of the property through a court-supervised process.

Partition by Appraisal: Sometimes, the court appoints an appraiser to determine the property's value, and co-owners are given the option to buy out each other's interests at that value. This approach can be less contentious and may lead to a more amicable resolution.

The choice of partition action depends on the specific property and the co-owners' preferences. Each type has its unique process and potential outcomes, and our firm can provide guidance on which approach aligns best with your circumstances and goals.

What factors are considered when determining the fair division of property in a partition action, and how can your attorneys help ensure my interests are protected?

When determining the fair division of property in a partition action, several factors come into play. The court considers each co-owner's ownership interest, their financial contributions to the property, any improvements or maintenance they've undertaken, and their overall financial equity in the property. Additionally, market value assessments and property appraisals play a role in determining equitable distribution. Our attorneys can assist by ensuring that all relevant information, documentation, and arguments are presented to the court to advocate for your interests. We can help establish a fair and accurate valuation of the property, demonstrate your contributions or financial equity, and negotiate on your behalf to achieve an equitable division of property or sale proceeds. Our goal is to protect your rights and financial interests throughout the partition action process, ensuring that the outcome aligns with your objectives.

What are the potential alternatives to a partition action, and how can your firm advise on negotiation or settlement to avoid litigation if possible?

Alternatives to a partition action may include negotiation, mediation, or settlement agreements. In many cases, co-owners can resolve their disputes without resorting to costly and time-consuming litigation. Our firm can provide valuable guidance on these alternative approaches, helping co-owners explore negotiation strategies, define clear terms for property usage or buyouts, and work towards mutually agreeable solutions. We have experience in facilitating productive discussions and can provide legal counsel to ensure that any negotiated or mediated agreements are legally sound and protect your interests. By leveraging our expertise, we aim to help co-owners find pragmatic solutions and avoid the stress and expense of a partition action, whenever possible.

What should I expect in terms of costs, timelines, and legal procedures when pursuing or defending against a partition action, and how can your firm provide clarity on these matters?

The costs, timelines, and legal procedures involved in pursuing or defending against a partition action can vary widely based on several factors, including the complexity of the case, the willingness of co-owners to cooperate, and the specific type of partition action pursued. Typically, partition actions can take several months to a year to resolve, with costs covering attorney fees, court fees, property appraisals, and other related expenses. Our firm provides clarity on these matters by offering a comprehensive assessment of your case during an initial consultation. We can outline the expected legal procedures, potential timelines, and an estimate of costs associated with your specific situation. By understanding the intricacies of your case from the outset, you can make informed decisions about whether to pursue or defend against a partition action, and our attorneys can work with you to develop a strategy that aligns with your goals and financial considerations.