Close Contact Us Now
Tap Here to Call Us

Code of Civil Procedure (CCP) section 872.510 - Joinder of Defendants

Code of Civil Procedure section 872.510 requires the plaintiff to include anyone who has an interest in the property as a defendant to the partition lawsuit. This statute is important for two reasons. First, it increases efficiency by having the plaintiff sue all involved parties at once, rather than in individual lawsuits. And second, it ensures proper joinder to avoid potential interest holders coming in once an interlocutory judgment of partition has been entered.

Code of Civil Procedure section 872.510 states:

The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.

(Amended by Stats. 1976, c. 73, p. 110, § 6.)

What Is an Example?

“Shawn” and “Julie” are an unmarried couple who bought a house in Los Angeles together as tenants in common. Julie’s mother helps them with the purchase of the home, and in exchange receives a small ownership interest percentage. Shawn and Julie move in and begin living together in the new home.

Unfortunately, Shawn and Julie’s relationship later deteriorates, and the couple breaks up. Shawn wants to sell the property and move on with his life, while Julie wants to keep the property. Shawn sues Julie for partition by sale.

Here, Shawn knows that Julie’s mother has an interest in the property he is seeking to partition. To comply with CCP § 872.510, Shawn must join Julie’s mother in the lawsuit as a defendant. That way, Shawn can sue both Julie and her mother in the same lawsuit instead of suing them separately. This saves all the parties, and the court, time and money in litigation.

Law Revision Commission Comments (CCP § 872.510)

1976 Addition

Section 872.510 supersedes former Section 754 (no person having a lien or “conveyance” need be made a party unless of record). Under Section 872.510, only persons having interests in the estate or estates as to which partition is sought need be joined. This provision is elaborated in the succeeding sections of this article. It should be noted that “interest” includes liens and that joinder of additional parties may be necessary under Section 389 (mandatory joinder).

For the effect of failure to join the holder of a recorded interest, see Section 874.220; for the effect of failure to join holders of interests actually known to the plaintiff or reasonably apparent from an inspection of the property, see Section 874.230.

Assembly Committee Comments

The Assembly Committee comment to Section 872.510 repeats in full the Revision Commission comment above. This is primarily because the Legislature essentially endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

Indeed, the introduction to Assembly Bill 1671 (the bill that contained the new partition laws) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.”

Semantics notwithstanding, the comment here is useful because it expressly points out that “interest” includes lienholders. As such, litigants filing a partition suit should be careful to name as defendants any and all parties holding a lien against the property, such as bank that financed the mortgage or the beneficiary (MERS is a common example) under a deed of trust.

Along those lines, because California financing typically involves deeds of trust, there is some dispute as to whether a plaintiff must name both the trustee and the beneficiary. While the trustee’s function may be limited to invoking the right of sale on default, they are nonetheless the holder of a record interest.

Case law suggests that plaintiffs need only name beneficiaries. In discussing the “interests” the plaintiff must set forth in the Complaint, the Legislative Committee limited the requirement to “only those interests the plaintiff reasonably believes will be materially affected by the partition action.” (Leg. Comm. Comment, CCP § 872.230.)

As such, the question is whether the trustee to a deed of trust holds an interest that will be materially affected by the partition. They do not. In fact, twice the Supreme Court has held to the contrary.

“Because a deed of trust typically secures a debt owed to the beneficiary, it is the beneficiary, not the trustee, whose economic interests are threatened when the existence or priority of the deed of trust is challenged.” (Monterey v. S. P. Partnership v. W.L. Bangham, Inc. (1989) 49 Cal.3d 454, 461.) Indeed, the Court held that when the beneficiary, not the trustee was a party to the action, “the real party in interest was before the court.” (Anderson v. Alexander(1920) 184 Cal. 265.)

Client Reviews
★★★★★
“We were in need of a real estate attorney. Eli Underwood provided excellent legal advice and services. He explained everything well and followed through with all important issues that needed attention. We found him to be reliable, courteous, patient and extremely professional. We highly recommend Mr. Underwood without any reservations.” I.S.
★★★★★
"I own a real estate investment company that operates across multiple states (California, Washington, Oregon, Montana, and more), whenever I run into an issue that needs legal attention, Eli is my first call. I've been working with him for years. He is an amazing attorney and I highly recommend him." Thank you for your help Sir!" T.W.
★★★★★
"Mr. Underwood is a fantastic Lawyer with extraordinary ethics. He responds quickly, which is rare these days, and he is very knowledgeable in his craft. It was a pleasure working with him and we will definitely use his services in the future if needed. Thank you for your help Sir!" M.O.
★★★★★
"Eli took our case and controlled every hurdle put before us. I one time commented to him that he must love his job because it seemed that he was always available. When talking about my case to anyone I always bring up where, I believe, the other parties Lawyer tried to take advantage of my wife and me. Eli stopped him in his tracks. On top of it being easy to work with Eli, it was a pleasure to have had him represent us. We were in good hands." E.T
★★★★★
"We were in need of an attorney with considerable knowledge of real estate law and the legal issues related to property ownership. Eli Underwood went above and beyond our expectations. In keeping us abreast of our suit, his communication skills were outstanding. This talent was especially demonstrated when dealing with the apposing counsel. We feel this gave us a tremendous advantage over the opposing party that resulted in us reaching a successful outcome. I would highly recommend Eli Underwood as we found him to be an exceptional attorney." P.B.
★★★★★
"In our need for legal services we found Eli to be well informed and on top of our case and our needs. Our's was not an ordinary case as it was a case with many facets. It was a very convoluted case. There were multiple owners involved in a property dispute where one of the owners sued the rest of the owners with a Partition Suit. Needless to say Eli was instrumental in helping us resolve our differences and gained us a profitable sale all with good end results for all. If you hire Eli Underwood you will not be disappointed!" M.A.
Contact Us
Start Chat