California Partition Law Blog

Trust Asset Distributions (Probate Code § 16246)

Published on: February 9, 2024 | By Underwood Law Firm, P.C.

underwood-trust-asset-distributions-300x300 A 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?

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A Primer on Tax Auctions (Code of Civil Procedure section 701.660)

Published on: February 7, 2024 | By Underwood Law Firm, P.C.

underwood-primer-on-tax-auctions-300x300 One of the more interesting ways to buy real estate is through tax auctions. When a party buys a property through a tax auction or foreclosure, they receive a special type of deed known as a “Sheriff’s Deed.” A sheriff’s deed is a legal instrument that is transferred when a property is sold as a result of a foreclosure. The purpose of this article is to provide information on Sheriff’s Deeds so that persons buying real estate at a tax auction can be better informed on the nature of exactly what they are purchasing.

What is the difference between a judicial and a non-judicial foreclosure?

Most foreclosure sales take place outside of judicial proceedings. This is because many mortgage agreements contain a “power of sale” clause. A “power of sale” clause gives the lender the ability to sell the mortgaged property to satisfy the borrower’s debt if the borrower fails to make their contractual payments. This nonjudicial foreclosure process, however, must comply with strict statutory requirements regarding the timeline of a sale and notice procedures once the borrower defaults. (Civil Code § 2924.)

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Newsweek Recognizes Eli Underwood as Partition Expert

Published on: January 31, 2024 | By Underwood Law Firm, P.C.

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.

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Undivided v. Divided Interests in Real Estate

Published on: January 31, 2024 | By Underwood Law Firm, P.C.

underwood-divided-undivided-interest-real-estate-300x300 Owning property can be complicated. The purpose of this blog post is to talk about different ways to hold title, and provides information on the meaning of some common terms so the average person can better understand their rights and responsibilities with respect to their property. Different types of property ownership come with different rights. By better understanding these terms, we hope to empower people to able to make the best possible decisions when faced with difficult situations.

Undivided Interests

An undivided co-ownership exists when an entire property belongs to two or more owners. An undivided interest includes the property as a whole and the owners have the right to the entire property. Undivided interests can be characterized as a joint tenancy, where two or more individuals each own a partial and equal right to an entire property. (Civ. Code, § 683.)

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5 Things to Prepare For If You Own Real Estate in 2024 (via CSQ)

Published on: January 26, 2024 | By Underwood Law Firm, P.C.

With rising rates keeping inventory and sales down, 2023 has seen a holding pattern for many real estate owners. Prices have held steady, but there has not been much movement in the market.

That’s likely to change in a major way as we head into 2024.

As the founder and president of Underwood Law Firm, a California-based boutique law firm that specializes in partition actions, I have a unique perspective on the real estate market. A partition action is a legal method that allows a property owner in a bad real estate relationship to use the court system to force the sale. Through my work, I have seen how trends in the larger economy can impact this decision, and how anticipated shifts in 2024 might play out for property owners.

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Affidavit of Death of a Joint Tenant (Probate Code § 210)

Published on: January 19, 2024 | By Underwood Law Firm, P.C.

underwood-affidavit-death-joint-tenant-300x300 Relationships 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?

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Selling Partition Property Through a Private Sale (CCP 872.720)

Published on: January 17, 2024 | By Underwood Law Firm, P.C.

underwood-selling-partition-property-private-sale-300x300 Real 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.)

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Equity as a Settlement Offer (Code of Civil Procedure § 998)

Published on: January 12, 2024 | By Underwood Law Firm, P.C.

underwood-equity-settlement-offer-300x300 California Code of Civil Procedure section 998 incentivizes parties in litigation to settle their disputes before trial. The statute provides that up to ten days before trial, either party may submit a written offer to the other to settle the case under specified terms. (CCP § 998(b).)

If the plaintiff rejects the defendant’s timely offer and, after trial, receives a judgment not more favorable than the one offered by the defendant, then the plaintiff must “pay the defendant’s costs from the time of the offer.” (CCP § 998(c)(1).) In most civil actions, the court also has the discretion to force the plaintiff to cover a “reasonable sum” of the defendant’s costs of using expert witnesses incurred after the offer was made.

When a defendant rejects the plaintiff’s timely offer and later receives a judgment at trial that is not more favorable than what the plaintiff offered, the court has the discretion to force the defendant to cover a “reasonable sum” of the plaintiff’s costs of using expert witnesses incurred after the offer was made. (CCP § 998(d).)

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Partition Actions by Personal Representatives (Prob. Code § 9610)

Published on: January 5, 2024 | By Underwood Law Firm, P.C.

underwood-partition-actions-personal-representative-300x300 Often 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

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Partitions of Spousal Property with Third Parties (Fam. Code § 2021)

Published on: January 4, 2024 | By Underwood Law Firm, P.C.

underwood-partition-spousal-property-third-parties-300x300 Family 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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