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 872.230 outlines the necessary information a plaintiff must have in their complaint. The point of the statute is for plaintiffs to file a proper complaint with all of the content required to initiate a partition lawsuit. If the party files an improper complaint, the court could dismiss the case at the outset.
Code of Civil Procedure section 872.230 states
The complaint shall set forth:
- A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
- All interests the plaintiff has or claims in the property.
- All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff.
- The estate as to which partition is sought and a prayer for partition of the interests therein.
- Where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.
(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. They decide to buy the house as joint tenants so that they each get fifty percent ownership interest.
Later, Shawn and Julie’s relationship deteriorates. Julie wishes to sell the house and move on with her life. Shawn, however, wants to keep the house because he believes it could be a good investment. Julie decides to sue Shawn for partition. For the partition lawsuit to be successful, Julie’s complaint must comply with Code of Civil Procedure section 872.230.
First, Julie states the property’s street address in Los Angeles and attaches a detailed legal description to the complaint. Next, Julie states that she has a fifty percent interest in the property. Julie then states that Shawn is the other fifty percent owner, and Julie is unaware of anyone else who has an interest in the property. After that, Julie writes her prayer in the complaint asking for a partition by sale of the property, with for the sale proceeds to be distributed according to the parties’ interests.
Finally, since Julie is seeking to sell the property, she must write in her complaint an allegation of facts justifying the sale. Julie states that a physical division would not be financially feasible. Julie further claims that a physical division would dramatically reduce the value of the property. With this, Julie’s complaint for partition is legally proper and complete.
Law Revision Commission Comments (CCP § 872.220)
1976 Addition
Section 872.230 is new. In addition to the information required by this section, other information may be necessary. See, e.g., Section 872.220 (information relating to title report).
Subdivision (a) requires a description of the property that is the subject of the action. It should be noted that several properties may be joined in one complaint even though located in different counties. See, e.g., Murphy v. Superior Court, 138 Cal. 69, 70 P. 1070 (1902). And, real and personal property may be joined in one action. Section 872.240. As to joinder of property under varying ownership, see Middlecoff v. Cronise, 155 Cal. 185, 100 P. 232 (1909).
Subdivision (b) requires an allegation of all the plaintiff’s interest in the property. For interests sufficient to maintain the action, see Section 872.210. Where the plaintiff has a lien on the property as well as an interest sufficient to maintain the action, he must allege his lien as well as his other interest.
Subdivision (c) supersedes the first portion of former Section 753. Unlike the former provision that required all interests to be set out regardless of whether the interests would be affected, subdivision (c) limits the requirement to only those interests the plaintiff reasonably believes will be materially affected by the partition action. Incorporation of a title report should be sufficient to satisfy this requirement as to recorded interests but not as to unrecorded interests known to the plaintiff. It should be noted that there may be interests of record in personal property filed to perfect a security interest under the Commercial Code.
Partition of some or all of the interests in the property may be obtained. Subdivision (d) requires the plaintiff to indicate which estate or estates are intended to be affected by the action. The estates in real property include estates of inheritance, for life, and for years. Civil Code § 761. For provisions relating to parties defendant, see Article 4 (commencing with Section 872.510).
Subdivision (e) requires an allegation of facts justifying a sale of the property where the plaintiff seeks sale. Should the plaintiff fail to seek sale at the time of filing the complaint, he may do so thereafter by amending the complaint subject to the general rules governing amendment. See Sections 471.5, 472, and 473. The defendant may request sale by appropriate pleading in the answer. See Section 872.410.
Assembly Committee Comments
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. The bill also repealed several laws and provisions to meet the Commission’s goals of streamlining and modernizing California’s partition laws.
Section 872.120 is an example of a 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.
A major change Assembly Bill 1671 made was for owners of successive interests to be given the right to seek partition, though the owners must show that partition is in the best interest of the parties. The Commission also recommended that the parties be able to pick which property interests would be partitioned.
In addition, 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.
Assembly Bill 1671 also introduced a third manner of partition, partition by appraisal. This version of partition was introduced for use in situations where physical division is inequitable and partition by sale may have undesired tax liability. Under partition by appraisal, which requires all the parties’ consent, a referee will appraise the property and any party can buy any of the interests in the property at the appraised price.
Additionally, the bill streamlined many procedural aspects of partition. This included clarifying the trial court’s powers. The bill also took away the referee’s judicial powers, making the referee into more of an advisory role rather than a decision-making role. Several provisions that were over one hundred years old were also repealed.
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.
Further, the bill changed the bid requirements for properties being sold under partition. Under the previous law, new bids had to exceed the previous bid by ten percent. Assembly Bill 1671 adopted the probate standard of increasing bids and applied it to partition sales. Under this new standard, new bids in partition sales must exceed ten percent on the first ten thousand dollars of the previous bid and five percent on any further amount.
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.
Another important change the bill made was expanding attorney’s fees as recoverable partition costs. The bill included the attorney’s fees for prosecuting or defending a related action for the common benefit of the property owners as recoverable under the costs of partition.
Under the old statutes, partition judgment was binding even towards someone who had an unrecorded interest in the property but was not a party in the lawsuit. The Commission found this rule harsh and potentially unconstitutional. The bill introduced a rule where the partition judgment would not be binding on a non-party with an unrecorded interest in the property if the plaintiff knew or should have known of the non-party’s interest.
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.
Learn more here.