In 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.
Generally, partition actions arise when the co-owners have a dispute over some aspect of the property they own together. Most commonly, partition actions arise when co-owners of a piece of property dispute whether to sell the property, and one co-owner files an action to have the court force the sale of the property.
For example, if Bob and Jill co-own an apartment complex, and Jill wants to sell the complex, but Bob refuses to sell the complex, Jill may file an action for partition to have the complex sold and the proceeds distributed according to their interests.
Who is a Partition Referee?
Typically, in a partition action, the court appoints a partition referee to oversee the partition of the property. Generally, the court has discretion as to who it may appoint as a partition referee. (see Leg. Comte. Comm. to CCP § 873.040.)
Otherwise, the Code of Civil Procedure provides information only about who may not be a partition referee: (1) A clerk or deputy clerk of the court; (2) A former or present partner or employee of the judge; (3) A relative within the third degree of the judge or the judge’s spouse or the spouse of such a relative; (4) An owner of any interest in the property that is the subject of the action. (CCP § 873.050.)
The referee usually has a duty to follow the instructions of the court and sell the property accordingly. (CCP §§ 873.510.)
What are the duties of a partition referee?
Under California Civil Procedure Code 873.060, “the referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.” Therefore, a referee’s duties are quite general.
First, the partition referee has a duty to file a report to the court and give notice to each party in the action of the filed report. (CCP § 873.280(a).) This report must include: (1) a description of the manner in which the referee executed the referee’s trust; (2) describe the property partitioned and identify the share allocated to each co-owner; (3) include any recommendations for opening or closing public/private ways, roads, streets, and easements. (CCP § 873.280(b).) Of course, it is important to note that the referee’s report is not conclusive, and it instead is used to advise the court. (Machado v. Machado (1944) 66 Cal. App. 2d 401, 405, 152 P.2d 457.) Therefore, the court is free to make its own observations. (Id.) Also, if notice is given to the other parties who have appeared, any party may move to confirm, modify, or set aside the referee’s report. (CCP § 873.290.)
Second, when selling or dividing property, a referee may identify a part of the property as a public or private way, road, or street, if it will advantage the interested parties. (CCP § 873.080(a).) The referee must report to the court upon making such a designation. (CCP § 873.080(b).) The report is then subject to the court’s confirmation and any necessary actions taken by the appropriate public entities. (CCP § 873.080 (c).)
Third, a partition referee has the power to enter into contracts. The court has the authority to (a) authorize or approve contracts of the referee for the services and expenses of surveyors, engineers, appraisers, attorneys, real estate brokers, auctioneers, etc.; (b) allow and direct payment of or reject claims under such contracts, and (c) provide for the date of commencement of any lien provided by law or contract for such claims (CCP § 873.110.)
For example, two years into Bob and Jill’s romantic relationship, they decided to jointly purchase a house and placed both of their names on the title. After they ended their romantic relationship, Jill wanted to sell the house, but Bob refused. Jill then initiated an action to partition the house. Thereafter, the court appointed Henry as a partition referee to carry out the partition of the house. Henry then requested approval from the court to enter into a contract with the Appraiser to have the house appraised. The court then authorized Henry to enter into the contract with the Appraiser. However, although Henry is the one who entered into the contract with the Appraiser, Henry is not personally liable for the contract. A partition referee is not personally liable for a contract or expenses incurred unless they expressly assume liability in writing. (CCP § 873.160.)
Further, the procedures for entering into a contract may differ depending on who the referee is entering into a contract with. When seeking to hire an attorney, the referee must receive approval from the court. (CCP § 873.110.) The application for approval to hire an attorney must be in writing and include the name of the attorney the referee wishes to hire and the purpose of the employment. (CCP § 873.120.) The referee may also hire a surveyor, with the approval of the court pursuant to CCP § 873.110, with any necessary assistants to aid in the sale and division of the property. (CCP § 873.130.) Similarly, the referee may also hire an auctioneer, with the approval of the court pursuant to CCP § 873.110, to conduct a public auction and secure purchasers to have the property sold in a public auction.
Partitions are already fairly common in California, particularly among unmarried couples and siblings. When a party initiates a partition action to have the court order the sale of a property and distribute the proceeds, the court may appoint a partition referee to oversee the partition of the property. Once the partition referee is appointed, the duties of a partition referee are general. The referee may enter into contracts and designate apportion of the property in a public or private way, and the referee has a duty to make a report to the court.
As each case is unique, property owners would be well-served to seek experienced counsel familiar with the ins and outs of partitions and co-ownership. At Underwood Law, our knowledgeable attorneys are here to help. If you are concerned about facing a partition action, if you’re interested in seeking one yourself, or if you just have questions, please do not hesitate to contact our office.
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