Articles Posted in Partition Action

underwood-costs-of-partition-action-300x300In every lawsuit, one of the biggest consideration is the cost. Frequently, clients are very eager to understand the amount that they will be required to pay to have their case resolved. After all, most people do not have a pot of money set aside for lawsuits, and are forced to eat into their savings to pay for an attorney to help with their legal problems. Even when attorneys’ fees are available for reimbursement, as they are in a partition action, the question of costs is always a significant question. 

While an attorney can never predict the exact amount down to the dollar that a case will cost, they can and should share the factors that could influence the amount that the client may ultimately have to pay to get the case resolved. For example, in a partition action, there are common issues that arise that could change the cost of the matter. That said, a relatively vanilla partition action generally costs more or less between $10,000 to $30,000.  

Factors that Affect a Partition Action

underwood-distributions-proceeds-partition-action-300x300Before the owners receive the proceeds from a partition sale, costs and expenses related to the partition action must be paid. Code of Civil Procedure section 873.820 sets forth the order that these expenses and costs must paid before the owners receive their proportional interest in the remaining proceeds. Specifically, it states that the proceeds must be distributed in this order:

  1. Payment of the expenses related to the sale
  2. Payment of the costs arising out of the partition

underwood-testimony-property-value-partition-cases-300x300The estimated value of a piece of property can be important for resolving several types of legal disputes. It is crucial when a property owner needs to establish damages when the government interferes with the owner’s property and diminishes its value. Spouses may wish to testify regarding the value of their marital property when it is divided during divorce proceedings. A property owner may also want to testify as to their property’s value to contest a bank’s foreclosure on the property.

Testimony regarding a property’s estimated value can also be important during partition proceedings: when one or more co-owners of a property want to sell their property interest a question arises under the Partition of Real Property Act as to the Property’s value. As such, determining who can answer that question becomes of critical importance.

Normally, who can testify as to a property’s value?

underwood-how-to-file-partition-action-california-300x300When co-owners of real estate cannot agree on how to divide or use their property, filing a partition lawsuit becomes a necessary course of action. In California, where real estate is often a significant investment, understanding the process of partitioning property is essential. In this article, we’ll walk you through the steps involved in filing a partition lawsuit in California, empowering you to navigate this legal process effectively.

What should you know before filing a Partition Action?

1. Understand the Concept of Partition.

underwood-trust-asset-distributions-300x300A trust is a legal device often used in estate planning. A trust may be established in the trustor’s lifetime, or it may be established in the trustor’s will where it takes effect once the trustor dies and the will is admitted in probate. Generally, assets in a trust are distributed according to the trustor’s intent, which can be specified in the trust instrument or document. 

If a trust instrument is not specific, the Probate Code gives trustees broad discretion to distribute the trust’s assets by: (1) liquidating them and distributing the proceeds between the beneficiaries (in cash distribution); (2) allocating equal shares in interest in the trust’s assets between the beneficiaries (pro rata in kind distribution); or (3) allocating whole assets separately to different beneficiaries (non-pro rata in kind distribution).

What is a trust?

More unmarried couples are purchasing houses together than ever, but there can be some dangerous legal implications if they decide to go their separate ways, an expert told Newsweek.

As companies institute return-to-office policies, many couples find themselves needing to live in different locations, complicating the home purchase and mortgage they signed on for.

Read More: Unmarried Couples Locked into Homes

underwood-affidavit-death-joint-tenant-300x300Relationships are hard, and real estate relationships are even harder. People can own real estate, called “holding title,” in many different ways. One of the more common ways that non-married couples hold title to real estate is as a joint tenant. And one of the core features of a joint tenancy is a “right of survivorship,” which means that if one of the owners dies, then the other ones inherit their shares automatically without the need for the probate process. 

Instead of a lengthy court process, in order to perfect title, the only thing that the other owner must do is to record an affidavit of joint tenant. This article will provide some background information on joint tenancies, explain things needed to know about an affidavit of death of joint tenant, and discuss a common scenario so that people who find themselves in these situations will be better equipped to handle them.   

What is a joint tenant?

underwood-selling-partition-property-private-sale-300x300Real property partitions help co-owners and co-tenants divide real estate that they purchased together.  Partition actions can be agreed upon by the parties, but if there is no agreement, a court will oversee the partition.  Under California law, a court will first determine each party’s interest in the property and then determine the way the property will be partitioned.  (Code Civ. Proc., § 872.720(a).)  California Civil Code of Procedure section § 872.720(a) provides: 

If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.  (Code Civ. Proc., § 872.720.)  

Property partitions can be completed by dividing the physical property, by selling the property and dividing the amount of the sale among the interested parties, or by appraisal with all parties’ consent.  In partitioning property through a sale without an agreement, courts may select a referee to assist in the sale.  While courts presume that physical division of the properties is the fair option, a party wanting to sell the property can prove that it would be fairer to sell it than it would be to divide it.  (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 366.)

underwood-partition-actions-personal-representative-300x300Often times, a person’s estate includes property. While property disputes between co-owners are complicated enough, a property dispute including the estate of a deceased person adds an entirely different layer of complexity to the situation. In these instances, there are special laws that apply to help to clarify the process.  

This article will discuss who may bring a partition action on behalf of a deceased person, and address some of the complexities of that process. These complexities arise because of something known as “venue,” or the specific rules relating to the right place or forum to resolve the dispute. In other words, a debate about where to have the debate. Hopefully, this article will clarify that process to simplify what is already an emotionally difficult situation. 

Who can sue on behalf of a deceased person

underwood-partition-spousal-property-third-parties-300x300Family Code section 2021 provides that a court “may order that a person who claims an interest in the proceeding be joined as a party” to nullity, dissolution, and legal separation proceedings. (Fam.C. § 2021(a).) An interested third party may wish to join a family law proceeding, or an existing party may want to join the interested individual. An existing party may request that the court join the third party if the third party possesses or claims to own property that the court has jurisdiction over in the proceeding. (Cal. Rules of Court 5.24(c)(1).) Additionally, a third party may request to be joined if they have been served a temporary restraining order that affects their ability to use property they possess or claim to own. 

When will courts order joinder in Family Law?

When a claimant has a property interest at stake and is requested to be joined, the court has the discretion to decide whether the claimant will be joined as a party. (Schnabel v. Superior Court (1994) 30 Cal.App.4th 758, 762-63.) In other words, the court is allowed to deny a request for joinder even if the individual seeking it has a legitimate interest in the proceeding. This is called a “permissive” joinder. Joinders are mandatory only when the party sought to be joined has or claims physical custody or visitation of a minor child involved in the family law proceeding. (Cal. Rules of Court 5.24(e)(1).)

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