Code of Civil Procedure (CCP) Section 872.040 - Partition Law Nonexclusive

California Code of Civil Procedure Section 872.040 is a unique statute in that its broad language has swept up arguably narrow initial purpose. Put simply, this statute was designed to prevent physical partitions that would violate the Subdivision Map Act. (Wells Fargo Bank v. Town of Woodside (1983) 33 Cal.3d 379, 391, fn. 10.)

This is because, according to the Attorney General, physical partitions are indeed divisions that would implicate the many planning and zoning regulations required by the Subdivision Map Act. (64 Ops.Cal.Atty.Gen. 762 (1981).)

To ensure compliance, Section 872.040 provides that nothing under the Title – Title 10.5 Partition of Real and Personal Property – justifies noncompliance with the Act, even if that fact would prevent physical partition. Instead, any partition order resulting in noncompliance could be vacated.

Code of Civil Procedure section 872.040 states

Nothing in this title excuses compliance with any applicable laws, regulations, or ordinances governing the division, sale, or transfer of property.

(Added by Stats.1976, c. 73, p. 110, § 6.)

For example, “Brittany” and her sister “Gianna” purchased several parcels of land with a dream of building a home for their parents to retire in. Each sister received an undivided equal interest in the property. A few years had passed, and the land remained undeveloped. Brittany began experiencing financial issues and wanted to sell the property. Gianna refused arguing that Brittany’s financial instability was an issue she needed to solve without ruining their dream. Brittany sought a partition action, and the court granted an interlocutory judgment ordering a partition of kind dividing the property. However, the division ordered by the court did not comply with the Subdivision Map Act or with local zoning ordinances. The failure of compliances with these laws and ordinances caused the judgment to be vacated under 872.040.

Regarding this statute, the Assembly Committee comment reads:

“Section 872.040 codifies the rule that the partition statute cannot be used to avoid any applicable laws governing property transactions. See, e.g., Pratt v. Adams, 229 Cal.App.2d 602, 40 Cal.Rptr. 505 (1964) (Subdivision Map Act). Whether a particular law, regulation, or ordinance is applicable in a partition action is determined by the terms or a construction of that law, regulation, or ordinance.”

As acknowledged in the introduction, this statute was designed squarely to address the interplay between partitions and the Subdivision Map Act. The comment is based largely on the case of Pratt v. Adams, where a group of people took title to a 46-acre property, all as joint tenants, and then obtained a partition judgment so that a total of 38 separate parcels resulted from the original. (Pratt, 229 Cal.App.2d at 605.)

On appeal, the First District held the physical partition to be without merit, noting that the litigants essentially “caused” invalid subdivisions even though they obtained judicial approval to do so. (Id.)

Recently, however, the Fourth District Court of Appeal applied the statute to different set of facts, based on the statute’s broad language. (Starcevic v. Pentech Financial Services, Inc. (2021) 66 Cal.App.5th 365.)

In Starcevic, two separate creditors obtained million-dollar judgments against a plaintiff, Tran, in 2008. Tran owned several properties as a tenant-in-common, and later filed a partition action in 2013 to get them sold. The two creditors were thrilled because they would both be entitled to the sales proceeds to satisfy their judgment liens. Pentech, however, failed to renew its judgment within the 10-year period mandated by the Enforcement of Judgments Law. Thus, when the majority of properties were sold in 2019, Pentech was not entitled to any of the sales proceeds.

In affirming this disposition, the Court noted that “there can be no dispute that section 872.040 is a clear expression of legislative intent in its inclusion of two sweeping terms: ‘Nothing… excuses compliance with any applicable laws… .’” (Id.) Thus the Legislature intended the law to have a broad sweep over any laws and regulations “governing the division, sale, or transfer of property.” And because the Enforcement of Judgments Law falls into this bucket regarding judgment liens on real property, partitions must fall into compliance.

Allowing Pentech to recover on its lien via a partition sale would violate the Enforcement of Judgments Law, and thus Pentech lost its status as the holder of a valid judgment lien.