Code of Civil Procedure (CCP) Section 872.620 - State of the Title

Code of Civil Procedure section 872.620 requires courts to verify the state of the title to the property at issue in partition lawsuits. This statute is important because the state of the property’s title may affect what relief the court can grant in its judgment.

Code of Civil Procedure section 872.620 states:

To the extent necessary to grant the relief sought or other appropriate relief, the court shall upon adequate proof ascertain the state of the title to the property.

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

What Is an Example?

“Shawn” and “Julie” are an unmarried couple who decide to move in together. They buy a house in Los Angeles as joint tenants and take out a mortgage on the home. Shawn and Julie then move into the home and start living together.

Eventually, Shawn and Julie’s relationship deteriorates, and they break up. They cannot agree on what to do with the new home. Shawn wants to sell the property and move on, so he sues Julie for partition. At this point, the mortgage has not been fully paid off.

At trial the court determines the state of the title to the property pursuant to CCP § 872.620. In doing so, the court discovers the remaining amount on the mortgage. Now, if the court concludes that the property should be sold, it can adjust the purchase price and inform the potential buyers. The court can also adjust the distribution of sale proceeds accordingly.

Law Revision Commission Comments (CCP § 872.620)

1976 Addition

Section 872.620 supersedes the portion of former Section 759 that required, where a sale of the premises was necessary, that “the title must be ascertained by proof to the satisfaction of the court.” Section 872.620 expands this requirement to any case, sale, division, or appraisal where ascertainment of title appears to be necessary. In contrast with Section 872.610, in cases where it is necessary to know the state of the title, Section 872.620 applies regardless whether a defendant raises the issue in his pleadings.

For special provisions relating to ascertainment of the status of liens, see Section 872.630.

Assembly Committee Comments

As is the case with the majority of the partition statutes, Section 872.620 does not have an official comment by the California Legislature. But this is primarily because the Legislature essentially endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

In fact, the introduction to Assembly Bill 1671 (the bill that contained the new partition laws) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” Thus, it’s reasonable to assume that the intent of the Legislature was substantially in line with that of the Revision Commission.

As to the comment itself, it provides that this provision supersedes former section 759. Relevant here, a portion of former section 759 read, “and when a sale of the premises is necessary, the title must be ascertained by proof to the satisfaction of the court before the sale can be ordered.”

But section 872.620 expands this requirement to any case where ascertainment of title is necessary, regardless of the form of partition sought, and regardless of whether the defendant raises the issue in his pleadings.

In practice, this means that the Court will always be seeking to settle issues of title before allowing a partition to proceed. As such, if a party’s title depends on their ability to quiet title or the specific enforcement of a prior agreement, then the Court may consider these arguments and balance the evidence.

In fact, before this statute was even passed, the First District Court of Appeal had already stated that “the equities of the respective parties are considered and disposed of upon principles which govern courts of equity. In such action the parties may assert any title they have, legal or equitable, and the court will decree what is equitable and proper.” (Demetris v. Demetris (1954) 125 Cal.App.2d 440, 445.)

This is in line with the general principle that a partition suit is an equitable action, and “a court of equity has broad powers and comparatively unlimited discretion to do equity without being bound by any strict rules of procedure.” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 766.)

Thus, to the extent that a court needs to engage in additional fact-finding to proceed with a partition, it will usually choose to do so.

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