Articles Tagged with partition lawsuit

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.

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-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-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. 

6302023-300x300California Code of Civil Procedure section 872.130 expands the court’s authority in an effort to make the court system more efficient when ordering a property to be partitioned. The section allows the court to issue temporary restraining orders and injunctions without the hurdles of contempt or general provisions to make such orders. 

Code of Civil Procedure section 872.130 states 

In the conduct of the action, the court may issue temporary restraining orders and injunctions, with or without bond, for the purpose of: 

6282023-300x300Partitions sales and foreclosure sales are two different ways that a property can be sold. The main difference between the two is the purpose behind the two sales. For partition sales, the purpose is to divide the property and for the owners to get the proceeds in proportion to their ownership. The purpose of foreclosure sales is to pay off a borrower’s loan. 

The Partitions Sale Process

Usually, partition sales are ordered by a court. This is because partition lawsuits are often brought before courts by a property owner who wants to force a sale if the parties cannot come to an agreement.  

6212023-300x300Partitions sales and probate sales are two different ways that a property can be sold. A main difference between the two is that a partition sale is ordered and overseen by the court, while a probate sale is generally overseen by a personal representative, and the court can have minimal involvement. There are also specific steps that the personal representative must take in the probate sale process under California law. 

The Partitions Sale Process

Usually, partition sales are ordered by a court. This is because partition lawsuits are often brought before courts by a property owner who wants to force a sale if the parties cannot come to an agreement. 

6162023-300x300The 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. 

6142023-300x300Yes. California law allows a co-owner to take out a mortgage without the other co-owners consent or knowledge. 

Co-owning property with other parties can be quite a responsibility that can be difficult to manage. One particularly stressful aspect of managing property is managing the debt that comes with financing the property. Some parties may even want to take out more debt without letting their fellow co-owners know. If such a debt or encumbrance on the property is taken, it is still enforceable and allowable and can result in the sale of the entire property. 

California Law on Co-Owner Mortgages Without Consent

672023-300x300Partitions sales and divorce sales are two different ways that a property can be sold.  One difference between the two is that in a partition sale, the court usually decides the proportion of ownership and how the proceeds are distributed among the owners, while in a divorce sale, the court generally must divide the property equally. Another difference is that the divorce sale process is similar to a normal real estate sale. Both sales can be determined informally among the parties or ordered by a court.   

The Partitions Sale Process

Usually, partition sales are ordered by a court. This is because partition lawsuits are often brought before courts by a property owner who wants to force a sale if the parties cannot come to an agreement. Read more about partition actions generally here

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