Articles Tagged with partition

underwood-partition-spousal-property-third-parties-300x300Family Code section 2021 provides that a court “may order that a person who claims an interest in the proceeding be joined as a party” to nullity, dissolution, and legal separation proceedings. (Fam.C. § 2021(a).) An interested third party may wish to join a family law proceeding, or an existing party may want to join the interested individual. An existing party may request that the court join the third party if the third party possesses or claims to own property that the court has jurisdiction over in the proceeding. (Cal. Rules of Court 5.24(c)(1).) Additionally, a third party may request to be joined if they have been served a temporary restraining order that affects their ability to use property they possess or claim to own. 

When will courts order joinder in Family Law?

When a claimant has a property interest at stake and is requested to be joined, the court has the discretion to decide whether the claimant will be joined as a party. (Schnabel v. Superior Court (1994) 30 Cal.App.4th 758, 762-63.) In other words, the court is allowed to deny a request for joinder even if the individual seeking it has a legitimate interest in the proceeding. This is called a “permissive” joinder. Joinders are mandatory only when the party sought to be joined has or claims physical custody or visitation of a minor child involved in the family law proceeding. (Cal. Rules of Court 5.24(e)(1).)

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

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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.” 

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. 

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