Articles Tagged with Partition action

underwood-testimony-property-value-partition-cases-300x300The estimated value of a piece of property can be important for resolving several types of legal disputes. It is crucial when a property owner needs to establish damages when the government interferes with the owner’s property and diminishes its value. Spouses may wish to testify regarding the value of their marital property when it is divided during divorce proceedings. A property owner may also want to testify as to their property’s value to contest a bank’s foreclosure on the property.

Testimony regarding a property’s estimated value can also be important during partition proceedings: when one or more co-owners of a property want to sell their property interest a question arises under the Partition of Real Property Act as to the Property’s value. As such, determining who can answer that question becomes of critical importance.

Normally, who can testify as to a property’s value?

underwood-how-to-file-partition-action-california-300x300When co-owners of real estate cannot agree on how to divide or use their property, filing a partition lawsuit becomes a necessary course of action. In California, where real estate is often a significant investment, understanding the process of partitioning property is essential. In this article, we’ll walk you through the steps involved in filing a partition lawsuit in California, empowering you to navigate this legal process effectively.

What should you know before filing a Partition Action?

1. Understand the Concept of Partition.

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.

Read More: Unmarried Couples Locked into Homes

underwood-partition-actions-personal-representative-300x300Often 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

underwood-law-com-recognizes-partition-firm-300x300Underwood Law Firm is a finalist for the California Legal Awards’ Vanguard Award.

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Underwood Law Firm is a finalist for the California Legal Awards’ Vanguard Award, honoring firms and companies that have revolutionized their business to stay one step ahead of the current and future forces shaping the legal industry.

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-5-300x300Just 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).) 

underwood-partition-real-property-guide-part-4-300x300This 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. 

underwood-how-does-lender-respond-partition-action-300x300A 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. 

underwood-partition-real-property-guide-part-3-300x300How 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).) 

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

underwood-partition-real-property-guide-part-2-300x300As 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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