California Partition Law Blog

A Primer on Depositing Money Into Court (CCP § 572-573)

Published on: December 6, 2023 | By Underwood Law Firm, P.C.

underwood-depositing-money-court-300x300 Under certain special circumstances, money can be deposited with the court to safeguard during lawsuits under Code of Civil Procedure sections 572 and 573. The justification for such a rule is that, if the court doesn’t protect the money, the other party may spend it, rendering a plaintiff’s victory somewhat hollow.

However, there are several important limitations in place in order for parties to actually utilize section 572. Chief among them is that the money needs to be “the subject of the litigation.” And even if the money does fall into this category, the Court cannot receive the funds until it is proven that the money is being held wrongfully.

What is a money deposit with the Court?

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The Complete Guide to the Partition of Real Property Act (Part 5)

Published on: December 1, 2023 | By Underwood Law Firm, P.C.

What if parties do not appear in a lawsuit requesting partition in kind under the Partition of Real Property Act?

underwood-partition-real-property-guide-part-5-300x300 Just as there are special provisions for defaulting parties with partitions by sale, so too are there unique rules where some defendants fail to appear in a partition in kind action.

The text of the statute provides that, “if the court orders a partition in kind, the court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment… a part of the property representing the combined interests of these cotenants as determined by the court.” (CCP § 874.318 (d).)

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Failed Deeds in Contemplation of Marriage

Published on: November 29, 2023 | By Underwood Law Firm, P.C.

underwood-failed-deeds-contemplation-marriage-300x300 It is an unfortunate fact that many marriages don’t make it out of the engagement stage. While this can be a difficult time for all involved, the situation can only become more dire when real property is involved.

Commonly, one owner of real property will add their partner to the house’s title shortly before the marriage occurs. Usually, they do this because they are under the impression that the marriage is about to happen. But when the partner calls the marriage off, the property owner is now faced with the problem of title. Under the law, the former partner is now an owner of the property.

In these instances, Civil Code section 1590 allows for the property owner to recover their title, although this will usually require filing a quiet title lawsuit. However, quiet title law can be difficult to understand, and in addition, litigants will need to take care not to blow the applicable statute of limitations.

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The Complete Guide to the Partition of Real Property Act (Part 4)

Published on: November 26, 2023 | By Underwood Law Firm, P.C.

underwood-partition-real-property-guide-part-4-300x300 This is a continuation of our ongoing series on the Complete Guide to the Partition of Real Property Act. For complete comprehension, we would suggest starting from the beginning.

As a quick summary, the Partition of Real Property Act is a law specific to California, passed in July 2022. (Stats 2022 Ch. 82 § 3 (AB 2245).) It brought significant changes to how partitions are conducted in the state, if the underlying parties are tenants in common. But even though the act is particular to California, it is actually derived from the Uniform Partition of Heirs Property Act (“UPHPA”).

Because of the similarity between the laws, and in order to deliver the most comprehensive understanding of the Partition of Real Property Act, this guide references law review notes, statutes, and appellate decisions from other states interpreting the UPHPA.

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How Does a Lender Respond to a Partition Action (Civ. Code § 2924l) [With Form]

Published on: November 22, 2023 | By Underwood Law Firm, P.C.

underwood-how-does-lender-respond-partition-action-300x300 A declaration of non-monetary status is a special type of court filing reserved for trustees under a deed of trust. These trustees have limited powers, but are often named as defendants in lawsuits by plaintiffs seeking to ensure proper joinder.

Of course, being named in a complaint carries with it several responsibilities, chief among these being that every defendant must issue a responsive pleading, such as an answer. For the trustee included purely as a precautionary measure, this is frustrating. Not only will they need to file an answer, which is both costly and time consuming, but they will also consistently be served with court documents in a case they have no interest in litigating.

To get around this hassle, trustees may file a declaration of non-monetary status, provided the relevant deed of trust is the “subject” of a lawsuit. Successfully filing this declaration means that the trustee no longer needs to participate in the lawsuit, provided the trustee also agrees to be bound by any court order relating to the subject deed of trust.

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The Complete Guide to the Partition of Real Property Act (Part 3)

Published on: November 17, 2023 | By Underwood Law Firm, P.C.

How does the court appraise the property (CCP § 874.316)?

As was noted previously, the court shall order an appraisal of the property once it determines that the parties are entitled to partition. (CCP § 874.316.) But how does that appraisal process work?

Once the court orders the appraisal, it needs to appoint a disinterested and licensed appraiser to value the property as if only one person owned it. This is because properties with multiple ownership interests typically sell for less. Once the appraisal is complete, the appraiser must file it with the court. After this is done, the court must conduct a hearing to determine the property’s fair market value 30 days after notice of the appraisal is sent to each party. (CCP § 874.316 (f).)

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What is a 1542 Waiver? (Civ. Code section 1542)

Published on: November 15, 2023 | By Underwood Law Firm, P.C.

underwood-what-is-1542-waiver-300x300 Civil Code section 1542 provides, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

Settlements are a key aspect of litigation. As roughly 95% of all civil suits end with settlements, litigants are bound to come across these agreements, because that’s what settlements ultimately are – agreements. And though each settlement will ultimately differ depending on the circumstances, there are some settlement terms in California that are simply ubiquitous.

These, of course, are agreements related to “release” and “waiver.” These are legal terms that relate to settlement provisions whereby both parties agree to release any claims they may have against each other. Almost every settlement has a section related to a “release.”

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The Complete Guide to the Partition of Real Property Act (Part 2)

Published on: November 10, 2023 | By Underwood Law Firm, P.C.

When does the Partition of Real Property Act apply (CCP § 874.313)?

underwood-partition-real-property-guide-part-2-300x300 As noted previously, the Partition of Real Property Act applies to real property held in tenancy in common where there is no agreement in a record binding all the co-owners related to partition. (CCP § 874.311.) But does that mean its provisions are mandatory in such situations? Case law and legislative history suggest the answer to that question is “yes.”

For one, the Code states that the property “shall” be partitioned under the Partition of Real Property Act unless all of the cotenants (including the defendants to the action) otherwise agree. (CCP § 874.313.) This mirrors the Uniform Partition of Heirs Property Act, which provides that if the property is heirs property, “the property must be partitioned under this act unless all of the cotenants otherwise agree in a record.”

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Can One Tenant in Common Convert to a Joint Tenancy?

Published on: November 8, 2023 | By Underwood Law Firm, P.C.

underwood-tenant-convert-joint-tenant-300x300 No, not unless they want to convert their own, singular interest into two or more shares. The reason for this is that grantors in a deed can only convey what they already own. If two tenant in common co-owners want to make themselves joint tenants, then they can collectively convey their interests to themselves in a deed. This works because, together, they own the whole property.

But if one co-owner conveys the property to himself, and declares that he is now a joint tenant, that doesn’t work. Only half the property is being conveyed, and only one person is receiving the property. This does not meet the requirements of California’s Civil Code, which requires that a joint tenancy vest in two or more persons with equal shares. (Civ. Code § 683.)

What is a Joint Tenancy?

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The Complete Guide to the Partition of Real Property Act (Part 1)

Published on: November 3, 2023 | By Underwood Law Firm, P.C.

underwood-partition-real-property-guide-part-1-300x300 It’s rare that a new law comes along that turns an entire established legal practice on its head. Yet that’s precisely what California’s Partition of Real Property Act intends to do. Revised in 1976, California’s partition laws remained unchanged and untouched for almost fifty years.

In 2021 and 2022, however, the California Legislature passed the Partition of Heirs Property Act, then revised it into the California Partition of Real Property Act. The new statutes in this bill provide a new procedural process for how partitions are conducted in the state, provided the subject property qualifies for its provisions.

While the passage of a new law within a particular legal field is always exciting, it also has its downsides. The Partition of Real Property Act is currently in effect and will continue to apply to specific partition actions filed from this point forward. However, because the law only became active in January of 2023, appellate courts have yet to take a crack at its provisions to aid attorneys and litigants in how they should be interpreted.

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