What are the historical origins of partition actions? (Blackstone, Commentaries on the Laws of England)

Underwood-Blog-Images-1-1-300x300Sir William Blackstone is a titan in the field of legal jurisprudence. His 1765 work, Commentaries on the Laws of England, is his most famous legal treatise, forming the backbone of common law analysis as modern lawyers understand it today. Without his efforts centuries ago, our conceptions of property, individual rights, and governmental authority would not be the same. His works remain cited even now in judicial decisions at all levels, including the Supreme Court of the United States.

Blackstone’s comments on property law are particularly striking, for they bear the foundational ideas now found in our statutes governing real estate transactions, estate types, property rights, and ownership disputes. And while his analyses on tenancies in common and joint tenancy still bear striking resemblances to our own California statutes, his discussions of partitions show their age.

What is the common law, and why is it important today?

The United States has a common law legal system derived from that of England. In the 17th and 18th centuries, judges, lawyers, and scholars from England made their way across the Atlantic to settle in their new colonies. This necessitated bringing the law of England over to govern disputes. When America became its own country, the leading legal scholars used the English system as the basis for their own. Thus, even today, our two countries have incredibly similar legal principles.

It is for that reason that Blackstone’s Commentaries still has staying power. His analysis of British law allows for his observations to easily transfer over to our own.

What does Blackstone say about Partitions?

While Blackstone’s writings on estates, titles, and co-ownership contain many similarities to our current laws, the same cannot be said about his commentaries on a partition. This is because the partition was uncommon and restricted to certain ownership arrangements in common-law England.

Most of his writing on the subject comes when discussing “coparceners,” a much-outdated form of co-ownership. Under early English common law, when a property owner had only female children, they would take the land upon his death as coparceners. Under the law of coparceny, the women who inherited the land were forced to partition their lands.

Curiously, Blackstone mentions that despite this rule, there were some lands that simply could not be partitioned. For instance, he states that a “mansion-house” is “impartible.” (2 Blackstone, Commentaries on the Laws of England, Chapter 12, page 117.)

Additionally, Blackstone discusses the methods of partition, which never included forced sales. Instead, coparceners would divide the land physically into equal shares, depending on their number. Which coparcener received which lot would be left to the heirs to decide, though usually, it was by “seniority of age.” (2 Blackstone, page 117.)

Lastly, Blackstone writes that there existed a “compulsory” partition of lands. If the heirs could not come to an agreement about how to divide the property, they could sue for a writ of partition. This process involved a sheriff going to the property in question and partitioning the land himself, with the help of a jury if need be.

How does current partition law differ from Blackstone’s Commentaries?

Our modern partition laws are, thankfully, less restrictive than those in place when Blackstone was writing.

Undoubtedly, the largest difference between then and now is that partition can be achieved through a judicial sale instead of a physical division. That said, “partition in kind is favored in the law, and in the absence of proof to the contrary, the presumption in favor of in kind division will prevail.” (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365.)

This does not mean that a sale will never be achieved. On the contrary, many properties can only be partitioned by the sale because a physical division would simply be impossible. For example, in the clustered streets of San Francisco, attempting to divide the residential homes into smaller lots would just be impracticable and would destroy the value of the property.

Blackstone’s comments on the impartible property are also without staying power. While the type and location of the property may affect the method of partition, those qualities are not bars on the right of the partition itself.

On the other hand, Blackstone is still correct today in that parties can agree to partition the property, and a court will recognize that agreement. Like the coparceners in Blackstone’s works, property owners can work out amongst themselves the best way to split the property up.

Yet this method is still subject to its own restrictions. This is because “the unambiguous language of the partition by appraisal statutory provisions… requires an agreement among the parties.” (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 598.) Thus, a partition by appraisal is available only when everyone agrees to it.

Blackstone is also somewhat correct in that partition can be “compulsory.” By statute, any co-owner or real of personal property may bring an action for partition. (CCP § 872.210.) Additionally, a co-owner’s ability to seek a partition is an absolute as a right. Code of Civil Procedure Section 872.710, subdivision (b), states that “partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.”

How can the Attorneys at Underwood Law Assist You? 

Partitions are fairly common in California, particularly among unmarried couples and business partners. The upside is obvious, as selling a co-owned property can prove to be an immediate monetary boon. But getting the ball rolling can be difficult, especially when faced with the prospect of dealing with lawyers and the court system. Additional problems can also arise during litigation. Oral agreements between co-owners can impact title, mortgages can affect distributions, and lengthy accounting procedures can balloon litigation costs. 

As each case is unique, property owners would be well-served to seek experienced counsel familiar with the ins and outs of partition actions. At Underwood Law, our knowledgeable attorneys are here to help. If you are concerned about facing a partition action, if you’re seeking one yourself, or if you just have questions, please do not hesitate to contact our office.

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