California Partition Law Blog
The California Partition Law begins at Code of Civil Procedure section 872.010 and ends at Code of Civil Procedure section 874.323. Within the Partition Statute, section 872.140 clarifies the court’s power to make equitable compensatory adjustments.
Code of Civil Procedure section 872.140 states
The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.
(Amended by Stats. 1976, c. 73, p. 110, § 6.)
What is an example?
For example, “Alice” and “Joe” owned separate 50 percent interests in a two bedroom single-family home they inherited from their father upon his death in 2022 (the property). The property had plumbing issues from tree roots growing into the clay pipes connected to the home and needed a new appliances. The property also had not been renovated since the early 1990s. Alice wanted to renovate the property and sell it, hoping that a new appraisal after the renovations would show an increased market value of the property. Joe wanted to reside in the property and only invest the minimum amount of funds necessary to replace the appliances and broken pipes.
As a temporary compromise, Alice permitted Joe to reside on the property for a year if he agreed to split the costs to replace the pipes and appliances as well as contribute to a kitchen renovation. Joe agreed to pay half of the costs, but needed a couple months to secure the funds necessary to pay Alice. Alice then paid $50,000 in costs to make the repairs and renovations with the expectation that Joe would provide a $25,000 check. After the repairs and renovations were completed, Joe refused to pay Alice. Joe alleged that Alice spent chose overpriced vendors to complete the work and made unneeded renovations. Alice and Joe continued to dispute over payment.
Frustrated with the conflict, Alice sought an interlocutory judgment from the court seeking a partition by sale of the property. After a hearing and trial, the court granted her petition and ordered a sale of the property with the proceeds to be divided according to the respective 50 percent interest of Alice and Joe. The property eventually sold for $500,000. Pursuant to Code of Civil Procedure section 872.140, the court ordered that $25,000 be deducted from Joe’s share of the sales proceeds as a compensatory adjustment to account for Alices expenses to improve the property. As a result, Joe received $225,000 instead of $250,000 for his share of the property sold. In contrast, Alice received $275,000 for her share of the property instead of $250,000.
Law Revision Commission Comments (CCP § 872.140)
1976 Addition
Section 872.140 continues the substance of the last sentence of former Section 792. It makes clear the court’s authority to order compensatory adjustment for such items as common improvements, unaccounted rents and profits, and other matters for which contribution may be required. See, e.g., Hunter v. Schultz, 240 Cal.App.2d 24, 49 Cal.Rptr. 315 (1966) (equitable adjustment offsetting use value of property against expense of improvements). For a provision for payment of owelty in cases of unequal division, see Section 873.250.
Assembly Committee Comments
In order to provide a more comprehensive understanding of Assembly Bill 1671, the Judiciary Assembly Committee issued a report, clarifying its intent regarding the bill. The legislature’s comments are recorded in the Recommendation of the California Law Revision Commission Relating to Partition of Real and Personal Property (January 1975), 13 Cal. L. Revision Comm’n Reports 401 (1975).
The Commission’s consultant for the partition study was Mr. Garrett Elmore, a practicing attorney who was a partition referee and former counsel for the State Bar Committee on the Administration of Justice. While drawing from the recommendations of the California Law Revision Commission, Assembly Bill 1671 aimed to modernize the law governing partition of real and personal property.
The existing title of the Code of Civil Procedure containing the partition remedy was enacted in 1872 and remained largely unchanged. The code had become outdated, with obsolete provisions, procedural gaps, and ambiguities. These shortcomings led to the diminishing effectiveness of the partition remedy. To address these issues, Assembly Bill 1671 was introduced to streamline the law, fill in gaps, resolve ambiguities, and modernize the partition remedy.
Overall, the bill reviewed laws from 1872 and enacted new legislation that superseded previous laws or modified laws. Section 872.120 is an example of provision that was added. Section 872.120, and other provisions, further codified the court’s broad statutory power to hear motions, make orders and decrees and issue temporary restraining orders and injunctions that arise from partition proceedings.
In addition, Assembly Bill 1671 made a multitude of other changes. Assembly Bill 1671 liberalized the instances of when a sale of property is permitted as opposed to a physical division. Under the former law enacted in 1872, the partition of property was typically done through physical division. Physical division was required unless such a division would cause significant prejudice. If prejudice would result, then the property could be sold with division of the proceeds. While Assembly bill 1671 does continue the existing preference for physically partitioning property, it expanded the circumstances where a property sale is allowed. Under Assembly Bill 1671, property can be sold if a sale would be more equitable than a physical division.
Likewise, the bill further expanded existing law to provide detailed procedure for sales and permitted the court to order the manner of sale on terms and conditions consistent with existing law. For example, the former law required three referees be appointed to divide and sell the property unless both parties consented to a single referee. Under the bill, a single referee is appointed by the court unless the parties consent to three.
Regarding venue for partition actions, Assembly Bill 1671 also changed venue provisions to require that actions for partition of real and personal property be brought in the county where the real property or some part of it is located.
Ultimately, Assembly Bill 1671 was approved by the Senate Judiciary Committee and is still binding legal authority for the partition of real and personal property.