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. Section 872.220 requires that the plaintiff state the existence and location of a title report if they have procured one. A title report includes a preliminary report, guarantee, binder, or policy of title insurance. (CCP § 872.010 subd. (e).)
Code of Civil Procedure section 872.220 states
If it is necessary to have a title report:
- The plaintiff may, prior to commencing the action, procure a title report and shall in the complaint indicate he has done so and designate a place where it will be kept for inspection, use, and copying by the parties.
- The court may, upon application of a party, authorize him to procure a title report and shall designate a place where it shall be kept for inspection, use, and copying by the parties. 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?
“Sarah” and “John” inherited a large piece of vacant land from their late grandfather in Humboldt, California. However, they had differing views on how to utilize the property. Sarah wanted to sell the land, while John wanted to build a single-family home. Unable to reach an agreement, Sarah sought a partition and sale of the property. Before commencing the partition action, Sarah obtained a title report, that showed her deceased grandfather as the owner of the property which was needed to transfer ownership to her and John as beneficiaries of their grandfather’s trust. As required by Code of Civil Procedure section 872.220, Sarah ensured that the report was accessible to John. Sarah designated that the title report would be kept at her counsel’s office in for use and copying. During the proceedings, John also requested authorization from the court to obtain a separate title insurance report. The court granted his request and designated that the title insurance report would be kept at his counsel’s office for Sarah to copy if needed. As the partition action progressed, the court recognized the need for various adjustments. For instance, Sara had incurred expenses related to conducting a survey of the property boundaries and resolving boundary disputes. The court, in accordance with the provision in section 872.220, ordered an allowance for these expenses and ensured that the relevant documents regarding these adjustments were made available for inspection and use by both parties. Ultimately, the court determined that a sale of the property was the most appropriate resolution.
Law Revision Commission Comments (CCP § 872.220)
1976 Addition
Section 872.220 is derived from former Section 799. For a definition of “title report,” see Section 872.020 (f). Provisions relating to the title report formerly found in Section 800 are omitted as outmoded and inappropriate under modern conditions. For allowance of cost of procuring the title report, see Section 874.0l0.
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.