Understanding the Basics of Partition Actions in California

When entering into an ownership agreement for the purchase of real estate whether with family, friends, or business partners, the idea of the co-tenancy ending in dispute does not typically enter into the discussion. The majority of sales and the distribution of proceeds do not require the presence of the court. However, in cases where an owner disputes the division of the property, the division of proceeds from the sale, or the right of another co-owner(s) to sell the property, the need for a partition action is clear.

A partition action is a request to the court to divide real property equitably between the interested parties. Co-owners automatically have the right to request a partition action unless an agreement, usually written, waiving their right to seek partition for a "reasonable" term exists. Agreements waiving the right to partition forever are not usually honored by the court as they are seen as being of an "unreasonable" period. In California, the law regarding a co-owner's right to partition is covered under (C.C.P. 872.210(a)(2).).

In the case of undeveloped land, the court can literally divide the property by equitable portion to each of the co-owners or it can order a sale of the property to the highest bidder (Interlocutory Judgment of Sale by Partition), with the proceeds to be distributed after the sale. It should be noted that equitable does not necessarily mean equal portion. For example, a 3-acre piece of land will not automatically be divided in 1-acre plots between three co-owners if one area of the property is intrinsically more valuable than the rest of the property.

When partition actions involves developed property, it is more likely that the court will order a sale of the property with proceeds to be divided among the co-owners. However, if the property is a multi-unit building that can be turned into condominiums, residential or otherwise, the court can order certain units to be assigned to the individual property owners instead of ordering the property to be sold.

Co-owners of property who are in disagreement about either how the property is being used, such as when a property is being used as a residence and one or more co-owners wish to use the property commercially, or whether to sell the property are the most common litigates in a partition agreement. Sometimes co-owners who have inherited an interest in the property seek to sell, whereas the prior owners desire to keep the property as is. If an agreement for the other co-owners to purchase the inheritor's interest in the property cannot be reached, the case often ends up in court. Spouses, and in California, state registered domestic partners, cannot seek a partition action. Dissolution of property in cases of this nature is handled as a community property issue. An exception to this is when the property was purchased by the couple prior to marriage or registration with the state or if the domestic partnership was registered locally but not with the state. Co-owners in this instance retain the right to partition.

To begin the process, an attorney for the petitioner files a complaint for partition in the county in which the property is located. Once the complaint is filed a Notice of Pendency is recorded with the County Recorders Office [CA Code Civ. Proc. 872.250(a)(c)]. This step notifies anyone interested in the property that a legal action is in process. The court rescinds the notice once the partition is accomplished or the complaint is dropped. When the case gets to court, the judge will make a determination on the validity of the partition request, and, if the request is legitimate, appoint a referee to divide or sell the property (CA C.C.P. 873.010(a).). It is usual for a co-owner to nominate an individual to act as referee in the case, but it is also possible for the court to choose someone known to the court from prior experience. Some attorneys are also licensed real estate agents and understand both the processes of the court and the ins and outs of property sales making them a good choice for a partition action referee.

Due to the complexity of real estate law and the emotions so often associated with ownership disputes, consulting an experienced attorney is always a smart move. Whether or not a partition action is undertaken, an attorney practicing real property law can offer advice based on case law and prior experience.

Sources:

http://www.kinseylaw.com/clientserv2/civillitigationserv/realestate/partition/partition.html
http://www.emw-sandiego-attorney.com/partition_adjustments_article.htm