The appointment of a partition referee is one of the most important aspects of a Partition Action. A partition referee is a neutral third party that is appointed by and accountable to the court. The sole function of a partition referee is to assist the court in matters related to partition actions. (CCP § 873.510.) The purpose of this blog post is to address who can serve as a partition referee in a court-supervised partition sale.
Generally, the law does not contain any requirements that a person must have in order to be eligible to serve as a Partition Referee. Instead, Code of Civil Procedure section 873.050 lists only individuals who cannot serve as partition referees. At Underwood Law Firm, our attorneys are more than familiar with partition actions and the complexities of appointing the right partition referee.
What is a Partition Action?
A partition is an action brought by a property owner seeking the court to force the sale of a jointly owned piece of real property. Typically, partition actions occur when co-owners of real estate have disputes about its ownership and use, and one of them seeks to end their ownership interest. That is, a partition action has no other purpose than to sever the unity of possession between cotenants in a piece of real property. (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 539.) Currently, partition actions are governed by the provisions set forth in the Code of Civil Procedure section 872.010. These statutes set out a general process by which a property may be partitioned.
For example, “Jamie” and “Adam” are former romantic partners who bought a house together in West Hollywood while they were dating. After they broke up, Jamie moved out of the house. Now Jamie wants to sell the house because it reminds him of his past with Adam. Adam, unfortunately, refuses to sell the house because of his bitterness over his relationship with Jamie. Given the difficulty in reaching an agreement, as a co-owner, Jamie can file an action for partition to have the court force the sale of the West Hollywood house.
It is important to note that there are two main methods for partitioning a piece of property: (1) a partition by sale and (2) a partition in kind. A partition in kind is the physical division of a property into parcels for each co-owner. The courts prefer a partition in kind because it allows co-owners to keep their portion of the property. In modern society, however, partitions by sale are far more common. (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365.) This is because the Subdivision Map Act generally prohibits divisions of real property absent approval from a local governmental authority.
How Do You Appoint a Partition Referee?
Code of Civil Procedure Section 872.720 states, “[A] If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that [B] determines the interests of the parties in the property and orders the partition of the property and unless it is to be later determined, [C] the manner of partition.” (emphasis added.) Once a party to a partition action has established their right to partition, then a court customarily appoints a partition referee to manage the partition (sale) process.
There are two different classes of partition referees that may be appointed by the court in a partition action. A partition referee may be appointed to determine the priority of liens on a piece of real property. (CCP § 872.630.) More commonly, a partition referee is appointed by the court to oversee the sale of a piece of real property subject to a partition action. (CCP § 873.010.) In California, a judge may appoint a partition referee with the consent of both parties to the partition action or on the motion of any party. (CCP § 873.020.)
Who Can Be a Partition Referee?
The rules regarding Partition actions are set forth in the Code of Civil Procedure, along with the rules regarding Partition Referees and their duties. The Code of Civil Procedure does not have any specific qualifications required for an individual to be eligible to serve as a partition referee; however, Code of Civil Procedure section 873.050 does set forth a list of individuals that are ineligible to serve as a partition referee.
Under Code of Civil Procedure section 873.050, the following individuals cannot serve as a partition referee in a partition action: (a) a clerk or deputy clerk of the court, (b) a former or present partner or employee of the judge, (c) a relative within the third degree of the judge or the judge’s spouse or spouse of such a relative, and (d) an owner of any interest in the property that is the subject of the action.
For example, “Amy” is a judge in a superior court in Los Angeles. Amy granted a partition to “Jamie,” who filed a partition action against his ex-boyfriend for a house in West Hollywood that they co-own. Amy now must appoint a partition referee to oversee the partition of the house. Although Amy’s husband’s brother, “Frank,” is an experienced partition referee, Amy cannot appoint Frank as a partition referee in this partition action because it is against Code of Civil Procedure section 873.050(c).
How Can the Attorneys at Underwood Law Assist You?
Getting a judgment of partition is just the first step in a partition action. It follows, then, that getting the property actually sold or physically divided can be a lengthy and complex process. The role of a partition referee only becomes pivotal after establishing the right to a partition. The nature of the lawsuit becomes that of financing as parties attempt to reach an agreement on the methods and costs of the partition itself.
As each case is unique, property owners would be well-served to seek experienced counsel familiar with the ins and outs of partition actions and the laws surrounding them. At Underwood Law, our knowledgeable attorneys are here to help. If you are attempting to get a partition referee appointed, are worried about the eligibility of a partition referee, or if you just have questions, please do not hesitate to contact our office.
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