Articles Tagged with Partition action

underwood-partition-real-property-guide-part-1-300x300It’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. 

underwood-right-of-first-refusal-300x300A right of first refusal is, essentially, an option contract. It is a contract or a condition in a contract between the owner of an asset, and some other person with an interest in that same asset, that allows the interested person to buy the asset from the owner instead of allowing the owner to sell it to a third party. Put differently, it’s a conditional right to acquire property, depending on the owner’s willingness to sell. (Campbell v. Alger (1999) 71 Cal.App.4th 200, 206.) 

The classic example is for a long-term lease of a house. There, as part of the lease, the owner provides that the renter has a right of first refusal if they rent for a set amount of years (let’s say five). After those fives years are up, the owner tries to sell the house on the market to a third party. But, because of the right of first refusal, the renter must be allowed to chance to make the same offer as the third party. Only if the renter “refuses” to match the offer is the sale allowed to proceed. 

While the concept itself is rather straightforward, there are many legal complexities that can arise when the right is integrated into other actions concerning property, such as eminent domain proceedings, probate sales, and partitions. 

underwood-what-is-real-property-300x300Under California’s Civil Code, real property refers to land, and things affixed to land such as houses. (Civ. Code § 658.) When people think of “property” they may envision a large lake house or a humble home. But this is only one type of property – real property. Personal property, on the other hand, is a broad term that encompasses property rights in basically everything else. A patent is property, and so are the apples that grow on trees in someone’s back yard, and so are the pipes and plumbing that run underneath someone’s house. 

But these property rights do not all fall into the same bucket. And when someone is selling a home, for instance, it’s important to know what property belongs to the seller (what are they allowed to take with them) and what belongs to the buyer (what must the sellers leave behind). 

In these situations, the right attorney can make all the difference. At Underwood Law Firm, our attorneys are well-versed in property law and partition actions, and are here to help you get the answers and assistance you need. 

underwood-does-partition-count-bankruptcy-claim-300x300Yes, it can. Partitions and bankruptcy can interact in unusual ways despite the fact that they can often seek the same thing: the sale of a piece of property. 

Nonetheless, a co-owner of property filing for bankruptcy either before or during a partition lawsuit immediately raises several issues for the other innocent co-owners. For example, they’ll need to decide whether they can file a bankruptcy claim, and they’ll also need to figure out whether their partition action is subject to the automatic stay provisions of bankruptcy.

As such, in these situations, the right representation can make all the difference. At Underwood Law Firm, our attorneys know the ins and outs of partition actions, and are ready to handle the accompanying litigation that’s sure to result, even in bankruptcy courts. 

underwood-responsible-bidder-partition-300x300Under the Partition Law, “[a] bidder is responsible if it can perform the contract as promised.” (PCC § 20162; Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432, 1438.) That means, in essence, that it can be determined from the face of the bid itself that it will be viable, without outside investigation or information. (Taylor Bus Service, Inc. v. San Diego Bd. Of Education (1987) 195 Cal.App.3d 1331, 1342.) 

The concept of the “responsible bidder” comes up at the end of partition cases when the court is deciding whether the confirm or vacate the partition sale. Essentially, the law provides that if a “responsible bidder” makes a viable bid above the sales price, then the court may vacate the sale and either sell the property to the bidder, or start a new round of marketing the property. 

For parties who were looking forward to a sale, this can be devastating news if the court chooses to send the house back to the market. As such, having the right attorney by your side can make all the difference. At Underwood Law Firm, our attorneys are well versed enough in the practice and procedure of partition actions to help you get the answers and relief you need

underwood-liability-of-partition-referee-300x300Generally, when a trial court orders an interlocutory judgment directing a partition by sale, it can appoint a referee to conduct the sale (CCP § 873.010). However, when a party to the partition feels that they have been aggrieved by the actions of this court-appointed referee, they may bring an action against them.

When this occurs, the party may contend that the referee violated some fiduciary duties or committed some torts while performing the role appointed to them by the court. However, when a role is appointed by a court, the person holding that role may be entitled to what is known as quasi-judicial immunity. 

What is Quasi-Judicial Immunity?

underwood-ccp-joinder-property-300x300The California Partition Law begins at Code of Civil Procedure section 872.010 and ends at Code of Civil Procedure section 874.323. Section 872.240 allows for personal property to be partitioned with real property. The purpose of Section 872.240 is to give parties an avenue to partition their personal property alongside their real property if they want to. 

Code of Civil Procedure section 872.240 states

Real and personal property may be partitioned in one action.

underwood-ccp-partition-complaint-300x300The California Partition Law begins at Code of Civil Procedure section 872.010 and ends at Code of Civil Procedure section 874.323. Section 872.230 outlines the necessary information a plaintiff must have in their complaint. The point of the statute is for plaintiffs to file a proper complaint with all of the content required to initiate a partition lawsuit. If the party files an improper complaint, the court could dismiss the case at the outset. 

Code of Civil Procedure section 872.230 states

The complaint shall set forth:

underwood-persons-auth-partition-actions-300x300California Code of Civil Procedure section 872.210 defines the persons who are authorized to commence an action of partition. The section broadens the people who may attempt to bring a partition, while retaining a limitation on property held in community or quasi-community interest. 

Code of Civil Procedure section 872.210 states

  1. A partition action may be commenced and maintained by any of the following persons:

underwood-blog-compensatory-adjustment-300x300The California Partition Law begins at Code of Civil Procedure section 872.010 and ends at Code of Civil Procedure section 874.323. Within the Partition Statute, section 872.140 clarifies the court’s power to make equitable compensatory adjustments.

Code of Civil Procedure section 872.140 states

The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity. 

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