California Partition Law Blog
The California Code of Civil Procedure plays a pivotal role in shaping the legal landscape of civil actions. The California Partition Law starts at section 872.010 and ends at section 874.323. Among the partition provisions, section 872.030 highlights the importance of consistency in the application of laws in partition actions. Section 872.030 applies the general rules of civil actions to partition actions unless they are inconsistent with the partition statute. If the Partition Law differs from the general sections of the Code of Civil Procedure, the Partition Law trumps the other section because partition actions are tailored to the unique nature of partition disputes and often have specialized requirements.
Code of Civil Procedure section 872.030 states:
The statutes and rules governing practice in civil actions generally apply to actions under this title except where they are inconsistent with the provisions of this title.
(Added by Stats. 1976, Ch. 73.)
What is an example?
For example, “Julie” and “Shawn” both inherited a fifty percent interest in a property. Julie would like to sell the property, but Shawn refuses. Because a private sale cannot be completed without Shawn’s approval, Julie filed a partition action against Shawn, seeking a partition of the property and sale. The court agreed that a partition and sale of the property was the proper remedy instead of a physical division. A court-appointed referee is needed to manage the property and conduct the sale pursuant to the partition order.
Under Code of Civil Procedure section 837.040, if both parties consent to a referee nominee, the court shall appoint that nominee as referee. However, Shawn and Julie could not agree on a referee nominee, so the court-appointed one. Shawn objected on the grounds that the appointment without both parties’ consent violated Code of Civil Procedure section 640.
Section 640 mandates that if the parties do not agree on the selection of the referee, then each party shall submit up to three nominees for appointment, and the court shall select a referee from among the nominees. However, Code of Civil Procedure section 837.040 comments that absent agreement among the parties, the choice of a referee is at the discretion of the court. Therefore, there’s an inconsistency because section 640 requires the parties to submit nominees for the court to choose from to appoint a referee, while section 837.040 allows a court to directly appoint a referee without a nomination process.
Code of Civil Procedure section 872.030 is relevant because it codifies that the partition statute should be applied if there is an inconsistency with general statutes and rules governing civil actions. Because section 873.040 falls within the partition statute, it trumps section 640. According to section 873.040, the court can appoint a single referee without the consent of both parties because Shawn and Julie could not agree on a single referee nominee. Therefore, the court appointment of a referee that neither Shawn nor Julie nominated was valid, and he or she could conduct the sale of the property.
Law Revision Commission Comments (CCP § 872.030)
1976 Addition
Section 872.030 makes clear that, although partition is nominally a civil action, this title contains some special procedural provisions that apply to partition despite general rules to the contrary. For example, the partition provisions governing referees apply in partition actions notwithstanding any general provisions to the contrary that might be found in Chapter 6 (commencing with Section 638) of Title 8 of Part 2 of the Code of Civil Procedure (references and trials by referees).
Assembly Committee Comments
In order to provide a more comprehensive understanding of Assembly Bill 1671, the Assembly Committee on Judiciary 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). While drawing from the recommendations of the California Law Revision Commission, Assembly Bill 1671 aimed to modernize the law governing the partition of real and personal property.
The previous legislation, enacted in 1872, had become outdated, containing 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, modified laws, or enacted new legislation. There were three major changes that Assembly Bill 1671 made to California’s laws relating to the partition of real and personal property.
First, under the former law, the partition of property was typically done through physical division. The physical division was required unless such a division would cause significant prejudice. If prejudice would result, then the property could be sold with the division of the proceeds. While Assembly Bill 1671 does continue the existing preference for physically partitioning a property, it expanded the circumstances where property sale is allowed. Under Assembly Bill 1671, property can be sold if a sale would be more equitable than a physical division. Additionally, the bill further expanded existing law to provide detailed procedures 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 to 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.
Second, Assembly Bill 1671 added partition by an appraisal, where the interest of one or more parties can be acquired by the other parties at appraisal value so long as all the parties agree. Adding partition by appraisal allows some of the parties to retain ownership of the property while simultaneously avoiding unwanted tax liability.
Lastly, Assembly bill 1671 expanded the type of property ownership that was partitionable. The bill grants successive estates, for years or life, the right to partition if the court finds that such partition is in the best interest of all the parties.
Ultimately, Assembly Bill 1671 was approved by the Senate Judiciary Committee and is still a binding code in partition actions.
Learn more here.