partition of real property

Selling Partition Property Through a Private Sale (CCP 872.720)

Published on: January 17, 2024 | By Underwood Law Firm, P.C.

underwood-selling-partition-property-private-sale-300x300 Real property partitions help co-owners and co-tenants divide real estate that they purchased together. Partition actions can be agreed upon by the parties, but if there is no agreement, a court will oversee the partition. Under California law, a court will first determine each party’s interest in the property and then determine the way the property will be partitioned. (Code Civ. Proc., § 872.720(a).) California Civil Code of Procedure section § 872.720(a) provides:

If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition. (Code Civ. Proc., § 872.720.)

Property partitions can be completed by dividing the physical property, by selling the property and dividing the amount of the sale among the interested parties, or by appraisal with all parties’ consent. In partitioning property through a sale without an agreement, courts may select a referee to assist in the sale. While courts presume that physical division of the properties is the fair option, a party wanting to sell the property can prove that it would be fairer to sell it than it would be to divide it. (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 366.)

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The Complete Guide to the Partition of Real Property Act (Part 5)

Published on: December 1, 2023 | By Underwood Law Firm, P.C.

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-5-300x300 Just 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).)

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The Complete Guide to the Partition of Real Property Act (Part 4)

Published on: November 26, 2023 | By Underwood Law Firm, P.C.

underwood-partition-real-property-guide-part-4-300x300 This 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.

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The Complete Guide to the Partition of Real Property Act (Part 3)

Published on: November 17, 2023 | By Underwood Law Firm, P.C.

How 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).)

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The Complete Guide to the Partition of Real Property Act (Part 2)

Published on: November 10, 2023 | By Underwood Law Firm, P.C.

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

underwood-partition-real-property-guide-part-2-300x300 As 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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The Complete Guide to the Partition of Real Property Act (Part 1)

Published on: November 3, 2023 | By Underwood Law Firm, P.C.

underwood-partition-real-property-guide-part-1-300x300 It’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.

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