How do you partition a condominium? (CCP § 872.820)

Underwood-Blog-Images-4-300x300When co-owners of property decide they want to go their separate ways but cannot come to an agreement on a buyout or reimbursements, they can institute a partition action and have the court system solve the problem.

While partition actions usually involve homes or commercial properties, they can also involve condominiums. Condos bring with them some additional complexities because condo owners generally own an interest in their individual units and the common areas of the condominium complex.

This dual ownership can pose problems because there are restrictions in place about what can and can’t be partitioned when condominiums are involved. Thankfully, the Underwood Law Firm is more than familiar with partitions of all types of property and is here to assist property owners throughout the process.

What is a partition?

A partition is a court-ordered process where a property owner forces the sale of jointly-owned real estate. Essentially, partition exists to allow individuals who own real estate together to take their share of equity and go their separate ways. “It is simply a dividing up of what the parties already own.” (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 539.)

Under the law, any co-owner of real or personal property may bring an action for partition. (CCP § 872.210.) This ability to partition property is absolute as a right. (CCP § 872.710.) There are, however, restrictions in place for certain types of properties, such as condominiums. 

How does ownership of a condominium work?

A condo, contrary to popular belief, is not necessarily a type of building. It is, for the purposes of real estate, a type of ownership interest in two types of property, individual units and common areas, also called a common interest development.

By code, a common interest development is created “whenever a separate interest coupled with an interest in common area or membership in an association is or has been, conveyed.” (Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 81.)

By means of example, the “Robertsons” are a young couple who decide to purchase a condo in San Francisco. The condominium complex includes several floors of huge “units” where people in the complex live. The complex also includes a pool, gym, and outdoor plaza.

The Robertsons own a separate interest in their individual unit where they live. The unit is described and recorded on a condominium plan the Robertsons signed before moving into the complex. Because the Robertsons’ interest in the unit is separate, that means it is separately and individually owned by the Robertsons. (see Civ. Code § 4185.)

The “common area” of the condominium complex is the pool, gym, and outdoor plaza. It is the entire common interest development except for the separate interests within the condominium project. (Civ. Code § 4095.) The Robertsons also own an undivided interest in this common area, meaning they, along with every other separate unit owner in the complex, own a portion of the common areas.

Can you partition the individual unit?

Yes. The individual units in condominium complexes are owned separately from the common areas. While there may be restrictions on their use pursuant to regulations established by the complex, “nothing… shall be deemed to prohibit partition of a cotenancy in a condominium.” (Civ. Code § 4610.)

Becker v. Becker (2016) Cal.App. Unpub. is an unpublished appellate case where such a partition occurred. There, two individuals, Ruth and Joan, agreed to purchase an individual condominium unit in Westwood. While Ruth paid most of the purchase price, Joan was to be the one living in the unit, provided she paid all property taxes, homeowners association dues, insurance premiums, and special assessments associated with the condo.

Joan, however, fell behind on the payments and eventually ceased making them altogether. Ruth decided that she’d had enough and filed a partition action to partition to get the unit sold. Ruth didn’t run into problems because she was partitioning only the individual unit.

Can you partition the common areas?

Yes, but it is much more difficult. The Civil Code states that “the common area in a condominium project shall remain undivided, and there shall be no judicial partition thereof.” (Civ. Code § 4610.)

That said, the code does provide exceptions. The owner of an individual unit may maintain a partition of the whole project, but it must be a partition by sale, and there must be a showing of one of the following:

(1) More than three years before filing the partition, the project was damaged or destroyed and has not been rebuilt or repaired substantially to its prior state; (2) Three-fourths (3/4) or more of the project is destroyed or substantially damaged, and separate unit owners comprising more than 50% interest in the common area oppose repairs; or (3) The project has been in existence for more than 50 years, is obsolete, and more than 50% of owners oppose repairs.

Absent one of these conditions, partitioning common areas is unavailable as a remedy.

Can you partition a condominium by agreement?

Within the context of partition law, the trial court must order the partition of property by sale and distribution of proceeds if the parties agree to this procedure. (Code Civ. Proc. § 872.820.) Furthermore, “as partition by the act of the parties rests upon agreement, it is obvious they may resort to any method which to them sees best…” (Gonzales v. Gonzales (1917) 174 Cal. 588, 594.)

This authority would seem to suggest that the common areas of condominiums could be partitioned if the parties came to an agreement, but the courts have held otherwise.

Civil Code section 4610 provides that there shall be no judicial partitions of common areas. Yet, “the term ‘partition’ encompasses divisions of interests by judicial action and by voluntary agreement of the parties.” (14859 Moorpark Homeowner’s Assn. VRT Corp. (1998) 63 Cal.App.4th 1396, 1405.)

The Legislature’s manifest intent in using the term was, therefore, to bar partition of a complex’s common areas by voluntary action and to permit judicial partition only under the conditions described within the statute. (Id.)

Thus, while a co-owner may partition their unit through an agreement, they will not be able to partition the common areas in the same manner.

How can the Attorneys at Underwood Law Assist You?

Partitions are fairly common in California, particularly among unmarried couples and business partners. While the partitioning of condominiums is not as common as homes, the upside remains obvious. Selling a co-owned property can prove to be an immediate monetary boon. But getting the ball rolling can be difficult, especially when faced with the prospect of dealing with lawyers and the court system.

As each case is unique, property owners would be well-served to seek experienced counsel familiar with the intricacies of partition actions. At Underwood Law, our knowledgeable attorneys are here to help. If you are concerned about whether you can partition your condominium, if you’re facing such a partition action yourself, or if you just have questions, please do not hesitate to contact our office.

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