When there are two or more owners of a piece of real property who are unable to come to an agreement on how to divide the property, any co-owner of the subject property may petition the court to partition the property. This is known as a partition action. Generally, the decision of a court to partition the property is merely the first step in the partition process. Although a partition action may sound quite simple, it is a complex process that requires extensive accounting and patience.
What is a Partition Action?
A partition action is an action brought by a co-owner of a piece of real property against another co-owner, seeking to divide the property according to the respective interests of the co-owners. In order to establish a right to a partition, a party must show that they have some ownership interest in the subject property. Under Code of Civil Procedure section 872.210, any owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate is owned by several persons concurrently or in successive estates may bring a partition action. (CCP § 872.210.) Therefore, a co-tenant has an absolute right to partition. (Formosa Corp. v. Rogers (1951), 108 Cal.App.2d 397.) At Underwood Law Firm, our attorneys are more than familiar with partition actions and the step-by-step process of pursuing a partition.
First Step of Partition: Filing a Complaint
The first step to a partition action is to petition the court for a partition of the property. In order to petition the court, a litigant must file a legally valid complaint for partition. As noted above, the litigant must be a co-owner of the subject property in order to have standing to file a partition complaint. (CCP § 872.210.)
Second Step of Partition: Interlocutory Judgement
After filing the complaint, a litigant must then obtain an interlocutory judgment of partition in the correct procedural form. An interlocutory judgment is a temporary judgment ordered before the close of trial during the litigation of the case. Under Code of Civil Procedure section 872.720, the court must enter an interlocutory judgment when the court finds that the Plaintiff in a partition action is entitled to a partition. In order to obtain an interlocutory judgment, a litigant must establish their right to partition by proving they have an ownership interest in the subject property.
For example, “Julie” and “Shawn” are two siblings whose father just passed away. Their father granted his two-story home in Los Angeles to both of them in his will. Shawn told Julie to come to live with him in the home. Julie moved in, and the two lived in the home peacefully for years until Shawn asked Julie to move out so that his girlfriend could move in. Julie felt she was being treated unfairly and not like an owner. Once his complaint was filed, Julie moved for an interlocutory judgment of partition, which the Court granted and ordered the property appraised and then sold if Shawn could not buy out Julie.
Third Step of Partition: Appointing a Partition Referee
If the court finds that a litigant has an ownership interest in the subject property and grants an interlocutory judgment of partition, the court will then appoint a partition referee to oversee the partition of the property. A partition referee is a neutral third party appointed by and accountable to the court to assist the court in matters related to partition actions. (CCP § 873.510.) The appointment of a referee is within the court’s discretion; however, the parties to the partition action may, upon agreement, nominate a person to serve as a partition referee. (CCP § 873.040.) Once a referee has been appointed, the referee has the power to carry out any act necessary to exercise the authority conferred to them by court order. (CCP § 873.060.) The referee is responsible for filing a report with the court describing the property and giving their recommendations for partition. (CCP § 873.280.)
Fourth Step of Partition: Determining the Method of Partition
Once the referee has provided the court with their report, the court must determine the proper method for partitioning the subject property. The court determines the proper method of partition by determining which method of partition is more equitable.
Typically, a property is partitioned in one of three ways. A partition by sale, where the subject property is sold, and the proceeds of the sale are split according to the respective interests of the titleholders. A physical partition physically divides the subject property into separate parcels in accordance with the respective interests. In a partition by an appraisal, one co-owner agrees to sell their interest in the property to the other co-owner under court supervision and according to the appraisal of a neutral third-party appraiser. Previously, partition by appraisal only applied to inherited property. The Partition of Real Property Act, which went into effect on January 1, 2023, now allows a co-owner to buy out the interest of the co-owner requesting a partition by sale.
Generally, the law favors a physical partition or a partition in kind. However, today, zoning ordinances and land use legislation have made physical partitions less practical. For example, “Jamie” and “Elliott” are former romantic partners who co-own a single-family home in Riverside. Elliott filed a partition action to partition the home. In this case, it is more likely that the court will rule that the home be partitioned by the sale because it is impractical to physically divide a single-family home according to Jamie and Elliott’s interests. A physical partition of the home would likely result in a decrease in the property’s value, which would harm the property interest of both Elliott and Jamie.
Moreover, if a co-owner is requesting a partition by sale under the Partition of Real Property Act, the court will inform the non-partitioning co-owner of the buy-out option. Now, the court may determine the fair market value of the property by ordering an appraisal. (CCP § 874.316.) Parties to the action have the right to object to the valuation by the appraiser and offer additional evidence of value. After the valuation, the court will notify the non-partitioning co-owner that they may buy the interest of the other co-owner requesting partition. (CCP § 874.317.)
The Partition of Real Property Act has also provided a new way for the court to determine whether a partition in kind is equitable. Under the Partition of Real Property Act, the court shall consider (1) whether the physical partition is practicable, (2) whether a physical partition would substantially diminish the fair market value of the property, (3) evidence of the collective duration of ownership, (4) sentimental attachment of a co-owner, (5) the lawful use being made of the property, (6) the degree to which the co-owner contributed to property expenses, and (7) any other relevant factors. (CCP § 874.319.)
Fifth Step of Partition: Final Judgement and Accounting
Once the court has determined the proper method of partitioning the subject property, the court will then order a final judgment of partition, and the property will be partitioned according to the proper method determined by the court. If the court orders a partition by sale, there must be an accounting to distribute the proceeds of the sale in strict compliance with the requirements of the evidentiary code.
How Can the Attorneys at Underwood Law Assist You?
The process of partitioning a property can prove to be a difficult task once in court. For a party to establish its right to partition, the party must establish that they have some ownership interest in the subject property. Additionally, the court must appoint a partition referee to oversee the partition and determine the proper method for partitioning the property. It follows, then, that initiating a legal proceeding for a partition can be a complex process.
As each case is unique, property owners would be well-served to seek experienced counsel familiar with the ins and outs of a partition action and the law surrounding it. At Underwood Law, our knowledgeable attorneys are here to help. If you are attempting to assert a partition action, are worried about your ability to assert a partition claim, or if you just have questions, please do not hesitate to contact our office.
Learn more here.