Articles Tagged with Partition by a Physical Appraisal

Underwood-Blog-Images-1-1-300x300In California, property subject to a trust can be partitioned, though with some additional wrinkles to the regular partition process. Because trusts can often involve successive estates with future and present property interests, litigants should take care to understand the law regarding trusts before beginning such an action. 

At Underwood Law Firm, our attorneys are more than familiar with partitions and the complexities such lawsuits can entail, particularly when trusts are involved. With our attorneys at your side, you can be sure that we will best assist you in achieving your litigation objectives. 

What is trust property? 

Underwood-Blog-Images-300x300Slander of title is quite the unique cause of action. As the name implies, it involves defamatory or slanderous activity but not against any person or personal interest. Instead, a slander of title involves activity that calls the state of your title into doubt (by, for example, filing an unwarranted lis pendens) that diminishes the value of your property. 

In these situations, parties have the ability to sue for slander of title. The suit is usually accompanied by an action to clear a cloud on the title or to quiet the title, but the gist of it is quite simple: compensation for the injurious activity to the state of one’s title. 

What’s Required for a Slander of Title Claim? 

Underwood-Blog-Images-1-300x300In most cases, no. Instead, the statute of limitations most frequently bars a partition action when a party’s rights to the property have lapsed due to an ouster. 

What is a Partition Action?

A partition action is an action brought by a co-owner of a piece of real property against another co-owner, seeking to divide the property according to the respective interests of the co-owners. Typically, a property is partitioned in one of two ways. A partition by sale, where the subject property is sold, and the proceeds of the sale are split according to the respective interests of the titleholders. A physical partition physically divides the subject property into separate parcels in accordance with the respective interests. 

Underwood-Blog-Images-1-2-300x300A partition by appraisal is an alternative method of partition that occurs when the parties to a partition action agree to have the subject property partitioned by appraisal. With the Partition of Real Property Act taking effect in 2023, almost every partition action moving forward will involve a Partition by Appraisal. As such, the rules for a partition by appraisal will be important to know for everyone involved in such an action.

Once a partition by appraisal commences, the parties must then go through the appraisal process with an independent appraiser. An independent appraiser appraises the subject property, and the judgment of the appraiser determines the value that should be paid to buy out the interest of the selling co-owner. At the Underwood Law Firm, our attorneys are more than familiar with partition actions and the requirements needed to pursue a partition by appraisal. 

What is a Partition Action?

Underwood-Blog-Images-1-1-300x300In California, in many partition actions, the court may enter an interlocutory judgment of partition, whereby there is an entry of judgment for partition. As opposed to a final judgment, an interlocutory judgment is a temporary judgment that is issued during the litigation of a case rather than after trial.

In general, interlocutory judgments are judgments entered before a trial comes to an end. “An interlocutory judgment or order is a provisional determination of some or all issues in the cause.” (7 Witkin, Cal. Procedure, supra, Judgement, § 12, p. 548.) Witkin identifies three different types of interlocutory judgments that exist.

The motion for an interlocutory judgment is a common issue in partition actions. Specifically, under Code of Civil Procedure section 872.720, the court must enter an interlocutory judgment when the court finds that the Plaintiff in a partition action is entitled to a partition. At Underwood Law Firm, our attorneys are more than familiar with the interlocutory judgment and requirements needed to get an interlocutory judgment. 

Underwood-Blog-Images-1-2-300x300The appointment of a partition referee is one of the most important aspects of a Partition Action. A partition referee is a neutral third party that is appointed by and accountable to the court. The sole function of a partition referee is to assist the court in matters related to partition actions. (CCP § 873.510.) The purpose of this blog post is to address who can serve as a partition referee in a court-supervised partition sale. 

Generally, the law does not contain any requirements that a person must have in order to be eligible to serve as a Partition Referee. Instead, Code of Civil Procedure section 873.050 lists only individuals who cannot serve as partition referees. At Underwood Law Firm, our attorneys are more than familiar with partition actions and the complexities of appointing the right partition referee.  

What is a Partition Action? 

Underwood-Blog-Images-3-300x300Even when a party finally secures a judgment of partition, the property itself must still be sold (or partitioned in another way). This raises a brand-new set of issues for litigants as they attempt to figure out the terms of sale, when the property should be sold, and, most importantly, the asking price.

Usually, anyone can buy the property for sale, but shrewd litigants can impose the right terms to ensure that the pool of potential bidders is sufficiently narrowed to meet their goals. At Underwood Law Firm, our attorneys are more than familiar with the practice and procedure of partition sales and are here to assist you in achieving your litigation objectives.

What is a partition sale?

Underwood-Blog-Images-2-300x300In most partition actions, the court appoints a partition referee in order to see that the property is sold or properly divided. The job of a Partition referee requires one to carry out several responsibilities and obligations. The purpose of this article is to provide some information on a partition referee’s duties and authority under the partition statutes.   

What is a Partition? 

A Partition action is a lawsuit that seeks to distribute equally a piece of property or sell said property and distribute the proceeds of the sale equally among the titleholders of the property. The rules governing Partition actions are set forth in the California Civil Code of Procedure.    

Underwood-Blog-Images-3-1-300x300Partition litigation can be broadly categorized into two phases. In the first, the parties fight over whether there is a right to partition the subject property. If the court agrees that such a right exists, then the litigation shifts into the second phase, where the parties determine the manner and means by which the property is actually partitioned.

Partition referees play an integral role in this second phase. Their responsibilities are wide and ranging, as they can assist in disbursements, marketing the property, dividing the property, and much more.

At the apex of this second phase is the referee’s report. This is a filing the referee makes with the court after the partition is completed, essentially detailing how the referee partitioned the property. Unsurprisingly, this report can become the focus of additional litigation as parties seek to confirm, deny, or modify the report based on any number of legal grounds.

Underwood-Blog-Images-1-2-300x300Partitions by appraisal are a unique way to resolve a partition dispute. In essence, they are buyouts that the parties contractually agree to, allowing one party to remain on the jointly-owned property in exchange for purchasing the other co-owner’s interest at an appraised value.

This seemingly middle-of-the-road option, however, is one of the options available for inherited property under the Uniform Partition of Heirs Property Act. Specifically, the Act permits the non-partitioning party to purchase the other party’s interest at the appraised value, which can allow the property to remain in the family. This effectively grants the non-partitioning property an option to “partition by appraisal.” When a party agrees to buy the property at the appraised value but then cannot ultimately find the money for the purchase, what happens when a partition by appraisal fails?  

What is a Partition?

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