Carlsbad Partition Lawyers

The City of Carlsbad was originally settled by ranchers in the 1860s. Once the Santa Fe Railway arrived in 1885, the city started to grow with homes, businesses, and agriculture. Today over 60% of homes are owner occupied. According to Redfin, The Carlsbad housing market is very competitive. Homes in Carlsbad receive 4 offers on average and sell in around 15 days. The median sale price of a home in Carlsbad was $1.4M last month, down 4.5% since last year. The median sale price per square foot in Carlsbad is $674, down 0.074% since last year. As a town with a rich history, residents of Carlsbad often own homes with others due to inheritance, which can lead to disputes with co-owners. There are at least four different instances where a Carlsbad Partition Lawyer can be helpful:

• Boyfriend-Girlfriend co-ownership of property;
• Sibling-Sibling co-ownership of property;
• Parent-Child co-ownership of property; and
• Investor-Investor co-ownership of property;

A partition action is a judicially-supervised forced sale of real estate. In California, each co-owner has an “absolute” right to partition the property. “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the co-tenants will be promoted by refusing the application nor temporarily postponing the action.” (Priddel v. Shankie (1945) 69 Cal.App.2d 319, 325 (emphasis added).) Thus, any owner of real estate (whether 5%, 50%, or 95%) has the right to bring a partition action in California.

Basically, any person who is an owner of real estate can bring a partition action in California. Code of Civil Procedure section 872.710, subdivision (a), states "A partition action may be commenced and maintained by any…owner of…such property." California Civil Code section 872.210 provides a property owner with the "absolute right to partition" absent a valid waiver. Thus, a partition action can be brought by anyone who no longer wants to own jointly owned real estate, other than spousal property. The best Carlsbad Partition Lawyer will be able to share information on this process with you.

First, a partition action is filed. A partition action can be filed if one co-owner of real property or a piece of real estate wishes to sell the property or piece of real estate in question but the other co-owners or co-tenants do not wish to sell their ownership rights.

Second, the court may appoint a court referee to oversee the sale of the property in question. The sales procedure includes that all parties agree to the terms and conditions of the sale in writing. If the parties can not agree, as partition actions are usually very contested issues, then the referee that the court appointed may recommend terms and conditions to the court. Then the court will hold a hearing to decide whether or not to accept those terms and conditions.

Third, in California, the property’s value will be appraised via a third party or another property appraisal with no ties to any of the parties. While this is not required in all states, it is recommended to make sure that all parties are on the same metaphorical page as to the potential sale proceeds of the property in question.

Fourth, the referee will conduct the sale in the method most agreeable to all of the party’s goals. This can be via a public auction or a private sale. Regardless of the specific method of partition by sale, the court will determine if the sale was “fair.” If it is decided that the property’s sale proceeds had a lack of proper notice, the sale amount is not within reasonable the value of the property, or if the proceeds were unfair- the court would rule that the property will be up for sale again.

Lastly, the court will order that the proceeds of the sale, minus any court litigated or approved offsets or costs, will be distributed equitably amongst all of the co-owners or people with interest in the property. A top Carlsbad Partition lawyer will be familiar with the process.

Section 874.040 gives courts only two options in apportioning the costs and fees of partition: by ownership interest or by some other equitable apportionment. (see Finney v. Gomez (2003) 111 Cal.App.4th 527, 545 (Finney).)

Notably, appellate courts have found the statutory language of Section 874.040 to give courts broad and equitable discretion. (Lin v. Jeng (2012) 203 Cal.App.4th 1008.)

This sentiment that the record must support the allocation of attorney’s fees in an amount greater than disclosed by title is echoed in Stutz, where the appellate court held the trial court erred in apportioning 100% of the attorney’s fees and costs of a partition to the respondent. The appellate court recognized that trial courts are free to apportion fees and costs in an equitable manner yet held that the record must support such an arrangement in “any manner other than according to the respective interests of the parties in the property.” (Stutz, 122 Cal.App.3d 1, 5.)

For example, where a party refuses to simply resolve the issue where the other party was willing to sell, then a court has the authority to order a different amount of fees than disclosed by title. (Forrest v. Elam (1979) 88 Cal.App.3d 164, 174.) In other words, the resistance to selling the property may be a factor that a court considers in awarding attorneys’ fees in a partition action. A knowledgeable Carlsbad Partition Attorney will be able to give you good advice on these issues.

An action for partition may include an accounting so that the respective rights of the parties can be adjusted and settled. (Lazzarevich v. Lazzarevich, (1952) 39 Cal. 2d 48, 50–51.) A cotenant who has advanced fund to pay common expenses is entitled to reimbursement from the sale proceeds before the balance is divided and distributed to the cotenants. (Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal. App. 2d 539, 541.) A cotenant out of possession can require the cotenant in possession to account for rents and profits or other compensatory adjustment in the division of sale proceeds. (CCP § 872.430.) An experienced Carlsbad Partition Attorney will be intimately familiar with these matters.

For many parties in litigation, it can be easy to try and get to the parties’ preferred judgment as soon as possible. Litigation can be long and draining, so it makes sense that parties want to quickly reach a conclusion, preferably in their favor.

Even when an issue seems straightforward, parties may not always get the result that they want. While the parties may seem to have a strong legal argument that is sure to win, they must always be prepared for counterarguments. Even when a trial court enters a favorable judgment, it is possible for that judgment to be reversed.

The property at issue in Scales v. Bradley (2020) WL 6302643 was a residence in San Diego. (Id., at 1.) Roosevelt Scales, Joyce Otis, and Lawrence Bradley bought the property together in 1978, with each having a one-third ownership interest. (Id.) Bradley lived at the property, but Scales and Otis did not. (Id.)

In 2017, Scales and Otis sued Bradley for partition by sale. (Id.) Bradley failed to file an answer to the complaint on time, so the trial court entered a default judgment for Scales and Otis. (Id.) The trial court also ordered a partition by sale and appointed a real estate broker to sell the property. (Id.)

Bradley claimed he first became aware of the broker trying to sell the property sometime in October 2018. (Id.) Afterwards, Bradley filed a motion to vacate the partition by sale judgment. (Id.) Bradley claimed that he was battling with cancer at the time, which prevented him from understanding and responding to the legal documents. (Id.) Bradley also contended that he had paid off many of Scales’ loans and that the other two owners had not financially contributed to the property since 1978. (Id.)

Scales and Otis argued that Bradley’s motion to vacate was filed too late after the default. (Id., at 2.) They also argued that Bradley’s excuse for not responding earlier was not believable. (Id.) The trial court granted Bradley’s motion and vacated the default judgment, stating that though the motion was untimely, extrinsic factors justified granting the motion. (Id.) Scales and Otis appealed, and the Court of Appeal affirmed the trial court’s judgment. (Id.)

Scales is a cautionary tale of jumping the gun. At the outset, Scales and Otis seemed victorious. The trial court had defaulted against Bradley, and the partition by sale looked like it was going to happen. Unfortunately, Scales and Otis did not seem prepared for Bradley’s retaliation.

It was undisputed that Bradley’s motion was untimely. (Id., at 3.) The trial court granted the motion to vacate based on the legal doctrine of extrinsic mistake. (Id.) There are three elements necessary for a party to show extrinsic mistake: a proper defense, a satisfactory excuse for not presenting the defense, and diligently seeking to set aside the default judgment once known. (Id.)

Bradley filed a proposed answer along with his motion to vacate, demonstrating that he had a proper defense. (Id.) The answer responded to the allegations in the complaint and included multiple affirmative defenses. (Id.) The Court of Appeal held that Bradley demonstrated a proper defense in the lawsuit. (Id.)

Additionally, the Court of Appeal ruled that Bradley had a satisfactory excuse, since he had cancer and other health ailments. (Id.) The Court of Appeal wrote:

“Bradley offered a self-declaration wherein he explained his many physical ailments (cancer, declining eyesight, advanced age) caused him to be unable to understand the gravity of the partition action and the documents he received relating to that suit. Additionally, Bradley explained that he had lived at the property for 40 years, maintained the property (including making $50,000 of improvements) without significant contribution from Appellants since 1978, paid all taxes and insurance associated with the property while he lived there, and paid off several loans borrowed by Scales secured by the property. With this foundation in mind, Bradley declared that he ‘did not comprehend that a lawsuit had been filed against me or grasp that my home of forty years could be forcibly sold. Consequently . . . [he] did not have the wherewithal to even know further action on his party was necessary.’ Reflecting on this evidence presented to the superior court, we determine that substantial evidence supports the superior court's implicit finding that Bradley had a satisfactory excuse for not defending the suit in the first place.” (Id.)

Finally, the Court of Appeal held that Bradley acted diligently to vacate the default judgment after finding out about it. (Id., at 4.) Bradley discovered the house was going to be sold after meeting the broker. (Id.) Afterwards, Bradley contacted his cousin, who told him that judgment had been entered and the house was going to be sold. (Id.)

Soon after this, Bradley hired an attorney. (Id.) Bradley’s attorney contacted Scales and Otis’ attorney. (Id.) Two days later, Bradley’s attorney reserved a hearing date for a motion to vacate the default judgment. (Id.) The Court of Appeal concluded that there was sufficient evidence that Bradley diligently acted to vacate the default judgment. (Id.) The Court of Appeal affirmed the trial court’s judgment. (Id.)

Scales shows the danger of relaxing after a favorable judgment in litigation. Though Scales and Otis managed to obtain a default against Bradley, they were not prepared with sufficient legal arguments to combat Bradley’s motion to vacate the default judgment. This complacency cost them their case.

Scales demonstrates that litigation is an ongoing process. Even after the trial court passes judgment, the case can still be heard on appeal. Parties must always be ready to present their legal arguments with proper authorities and evidence.

As seen in Scales, parties must be prepared at all stages of litigation. It is not enough to rely on the trial court’s orders, which can be challenged and reversed. Parties must be ready at all times to argue their case.

Here at Underwood Law Firm, our knowledgeable attorneys are here to help navigate the complex web of case law and statutes surrounding partitions. If you are trying to plan a partition order, or just have any questions, please do not hesitate to reach out to our office.

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