Carmichael Partition Lawyers

Carmichael is a city in Sacramento County, founded in 1909 by Daniel W. Carmichael as an agricultural colony. Carmichael is largely comprised of single-family homes, made up of new home buyers. According to Redfin, in July 2023, Carmichael home prices were down 5.7% compared to last year, selling for a median price of $542K. On average, homes in Carmichael sell after 10 days on the market compared to 12 days last year. There were 55 homes sold in July this year, down from 75 last year. New home buyers can encounter joint ownership problems, which often can be solved by a partition action. An experienced Carmichael Partition Lawyer will be able to provide the best advice on when a joint ownership situation may require legal action.

  • 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;
What is a Partition Action in California?

A partition lawsuit requires real estate to be sold regardless of the requests of the other title owners. The purpose of a partition action is to permanently end all disputes and remove all obstacles to the free enjoyment of land by one person. (McGillivray v. Evans (1864) 27 Cal.92.) These types of actions can be brought for all types of real estate from houses to farms to office buildings to apartment buildings. Similarly, partition actions are available all types of ownership situations from joint tenants to tenants-in-common to partnership property to property jointly owned by former spouses.

Historically, the term "partition" comes from the basic word to break into "parts" as in physically dividing real estate in half. For example, if two siblings inherited ten acres of farmland, the property could historically be divided into five acres a piece for each of them. As most people now live in single-family homes, which cannot simply be "split in half," courts will instead order that the property be sold and the proceeds, or equity, be "split in half." The best Carmichael Partition Lawyer will be able to share information on this process with you.

What Are the Steps in a Partition Action?

Under the Partition of Real Property Act, the court instead appoints an appraiser to do the heavy lifting. The new statute states that the court “shall determine the fair market value of the property by ordering an appraisal.” (CCP § 874.316.) The court doesn’t have to be the one to order the appraisal, but this is only if all the co-owners agree to a different method of valuation. 

If, however, an appraisal occurs, it shall be conducted by a disinterested third-party real estate appraiser licensed to determine the fair market value of properties. After the appraisal is conducted, parties may file objections to the value and can even offer additional evidence of value to the court. 

After the valuation is complete, parties will be introduced to the key feature of the new statute: the buy-out option. If a co-owner requests a partition by sale, then the court will notify the other co-owners that they may buy all the interests of the cotenant that requested the partition. (CCP § 874.317.) 

This is, essentially, a right of first refusal. The co-owners who don’t want the property sold now have the option to simply buy out the requesting party. Additionally, the buy-out price will be based on the property’s valuation, determined earlier in the litigation. And if one or more parties exercise the buy-out, then the court will reapportion ownership percentages based on the price paid.  A top Carmichael Partition lawyer will be familiar with the process.

Can You Recover Attorneys’ Fees in a Partition Action?

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 Carmichael Partition Attorney will be able to give you good advice on these issues.

What Are Claims for “Contribution”?

Under the law, a property owner can make a claim for contribution for anything that they have expended for the common benefit of all the parties as it relates to their jointly-owned property. Code of Civil Procedure section 874.410 states that “the court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.” For example, the credits can include expenditure in excess of the co-tenants fractional share for necessary repairs and improvements that enhance the value of the property. (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036.) Similarly, payments for interest, taxes, and insurance made by any co-tenant could be the subject of a reimbursement claim. (Hunter v. Schultz (1966) 240 Cal.App.2d 24.) An experienced Carmichael Partition Attorney will be intimately familiar with these matters.

A Partition Case Study: Lankford v. Lankford (2003): the Importance of Procedure

Litigation is a highly regulated process, with rules and requirements for just about every aspect of every lawsuit. This may seem daunting for parties, but these procedural rules are in place to make litigation as fair as possible for all the parties.

Due to the numerous procedural requirements in litigation, it is the parties’ responsibility to properly follow procedure. Not only will failure to follow procedure potentially anger the judge, such failure could also lead to disastrously unfavorable outcomes.

What Led This Case to the Court of Appeal?

The property at issue in Lankford v. Lankford (2003) Cal.App.Unpub. WL 1196414 were six residential properties in Alameda County. (Id., at 1.) LaVette Deatre Lankford, Twila LaShawn Lankford, Trecine LaMont Lankford, and James Willie Lankford, Jr., were all siblings who owned partial ownership interest in the properties. (Id.)

In October 2001, James sued his other siblings for partition. (Id.) James also sought an accounting, the appointment of a receiver, and damages for alleged fraud and mismanagement of the properties. (Id.) All three of the defendants were served with the summons and James’ complaint, and none of them answered or appeared to defend the lawsuit before December 2001, when James moved for default. (Id.)

In February 2002, the trial court entered default judgment granting partition and appointing a receiver for the properties. (Id.) The trial court awarded James $325,000 in compensatory damages and $100,000 in exemplary damages against LaVette and Twila. (Id.) The trial court also awarded James $10,000 in attorney fees. (Id.)

The defendants motioned to set aside the default judgment, which the trial court denied. (Id.) The trial court held that the defendants were properly served and their failure to answer did not fall under one of the exceptions. (Id.) The defendants also motioned to set aside the judgment, arguing the judgment was beyond the scope of relief requested in the complaint. (Id.) The trial court denied this motion as well. (Id.)

Additionally, the trial court found that the defendants had no further standing to contest the judgment. (Id.) The defendants appealed, and the Court of Appeal reversed in part and affirmed in part. (Id.)

Lankford’s Holding: Follow the Necessary Procedures

On appeal, the defendants argued that the trial court should not have denied them relief from the default judgment. (Id.) Each defendant cited different reasons for why they should have been relieved from default. (Id.)

Twila conceded that she was properly served but argued that she was not sure if a response was required because James was a drug addict who had previously sued her with similar claims. (Id.) Twila claimed that in a previous lawsuit, James abandoned the lawsuit after she hired a lawyer, so Twila believed that the current lawsuit was just a ploy to extort money from the family. (Id.) Twila contended that, given James’ past behavior, her actions were reasonable. (Id.)

Twila cited no legal authorities supporting her argument. (Id.) Due to this lack of support, the Court of Appeal held that her argument was waived. (Id.) Even if Twila did not waive her argument, simply believing a plaintiff will abandon the lawsuit does not excuse failing to defend oneself in a lawsuit. (Id.) The Court of Appeal concluded that Twila’s argument was meritless. (Id.)

Twila next argued that she thought she could ignore the lawsuit because she believed that the properties had been placed in James’s name in a trust for all the siblings. (Id.) Twila claimed that the lawsuit was not intended to strip the siblings of the property that James was allegedly holding for their benefit. (Id.) The Court of Appeal held that this argument also did not excuse failure to defend the lawsuit, and deemed the argument waived. (Id.) Additionally, the Court of Appeal concluded that this argument contradicted Twila’s first argument, and the trial court properly rejected this argument. (Id.)

LaVette argued that there was insufficient evidence to support the finding that she was properly served. (Id., at 3.) There was proof of service in the record that LaVette was served at a property at Arlington Road. (Id.) LaVette denied being served, but the server described the person he served who fit LaVette’s description and the server said that the person responded when he called the name “LaVette”. (Id.) The Court of Appeal held this evidence was sufficient to support that LaVette was properly served. (Id.)

Trecine argued that service on him was defective because he was served by substituted service on the litigation officer of the prison where Trecine was located when the lawsuit commenced. (Id.) At the time, however, the sheriff of the prison personally served Trecine with a copy of the summons and the complaint. (Id.) The Court of Appeal held that Trecine was properly served. (Id.)

Trecine then argued that the trial court violated his civil rights as an incarcerated indigent in failing to set aside the default judgment. (Id.) Even though Trecine was properly served, there was no indication that Trecine made any effort to respond to the complaint. (Id.) Trecine was also represented by an attorney for his motion to set aside default and did not give the trial court any factual support for his contention that his civil rights were violated. (Id.) The Court of Appeal held that the trial court acted properly. (Id.)

The defendants argued that the default judgment is void because it went beyond what was requested in the complaint and request for entry of default. (Id.) James argued that the judgment can be modified to exclude parts of the judgment that exceeded the damages pleaded in the complaint, but this did not void the entire judgment. (Id., at 5.) James argued that since the complaint specifically pleaded for partition, appointment of a receiver, sale of the property, and reasonable attorney fees, those aspects of the judgment should be upheld. (Id.)

The Court of Appeal agreed with James and held that the judgment should be modified. (Id.) The Court of Appeal reversed the trial court’s judgment on this aspect alone and affirmed on all other issues. (Id.)

Lankford shows the importance of legal procedure in litigation. Here, the defendants did not even respond to the plaintiff’s complaint. There is a certain amount of back-and-forth between the parties that is necessary in order for the parties to be on even grounds. Parties must follow these procedures to ensure a fair process for everyone involved.

How Underwood Law Firm Can Help You

As seen in Lankford, procedure in litigation is vitally important. Though there are a few exceptions, parties must always follow legal procedure in litigation. These procedures are in place to ensure a fair process for everyone, and failure to follow legal procedure can be fatal.

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.

Learn more here.

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