Partition By Physical Division
Real Estate Law Corporation™
In partition action lawsuits, the courts in California may often favor partition by physical division, barring situations where “extreme prejudice” is involved. Although in the past the courts had vast powers to order partition by division, in recent years, the court’s ability in this regard has been limited by planning and land use legislation.
What is Partition by Division?
Partition by division (alternatively known as “partition in-kind”) occurs when a California court, often guided by a partition attorney, orders a disputed property to be equitably and equally divided among the co-owners or co-tenants. Physical lines of division are drawn under the court’s supervision, thereby forming separate properties.
While ordering this type of partition, the court, in collaboration with the partition attorney, will usually consider whether the property has sufficient physical area for it to be divided both equitably and equally. This method is particularly applied in cases where co-owners express an interest in maintaining continued ownership or control of the property without sharing it with any other party.
In some instances, partition by physical division could involve certain portions of the divided property having physical structures like houses or commercial buildings, while other portions may only consist of undeveloped land. The court, with input from each co-owner and their partition attorney, will take these individual interests into account when determining the specifics of a partition by physical division.
How does the Court Ensure Equitable and Equal Property Division?
The courts in California recognize a rebuttable presumption that the property in question should be divided equally according to each party’s interest or share in the property. In other words, if each party has a 50% co-ownership or co-tenancy interest in the property, then the court will divide it 50/50 as far as possible in physical terms.
But in many cases, the courts are required to apply the principle of “equitable” division. For example, some “capital improvements” such as construction work or home renovation may be required to make the property usable. The market value of the property could change with these improvements, and the court will account for them in their partition order.
It’s noteworthy that certain costs related to the property, such as property taxes, insurance premium, or maintenance fees may not be a part of the equitable division. But all the costs will ultimately be subject to the court’s discretion in the property division.
What is Owelty?
Real Estate Law Corporation™
Owelty is a legal term for the amount of money that one co-owner or co-tenant pays to another (when the partition involves an unequal division) in order to make the division equal and equitable. The court order in these cases will include an “owelty” amount to compensate the party that has been prejudiced by the unequal partition.
The report of the partition referee (a neutral third party appointed by the court to oversee the partition) will include any recommendations regarding owelty in a partition by physical division.
Choose the Trusted Partition Action Lawyers in California
If you wish to pursue a partition action against your co-owners or co-tenants, or you are faced with a partition lawsuit in California, you need a skilled legal team specializing in this field of law. At Real Estate Law Corporation, our highly rated partition action lawyers are committed to protecting your rights. To schedule a free consultation with us, please contact us today.