Code of Civil Procedure (CCP) Section 872.710 - Right of Plaintiff to Partition

Code of Civil Procedure section 872.710 outlines how the court determines whether the plaintiff has the right to partition. The importance of this section cannot be understated. It essentially determines the success of the entire partition action. If the plaintiff can demonstrate their valid co-ownership, then partition is a right. Thus, the only way a defendant can stop a partition is if they prove the plaintiff has “waived” that right.

Code of Civil Procedure section 872.710 states:

(a) At the trial, the court shall determine whether the plaintiff has the right to partition.

(b) Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.

(c) Partition as to successive estates in the property shall be allowed if it is in the best interest of all the parties. The court shall consider whether the possessory interest has become unduly burdensome by reason of taxes or other charges, expense of ordinary or extraordinary repairs, character of the property and change in the character of the property since creation of the estates, circumstances under which the estates were created and change in the circumstances since creation of the estates, and all other factors that would be considered by a court of equity having in mind the intent of the creator of the successive estates and the interests and needs of the successive owners.

(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 start living together.

Unfortunately, Shawn and Julie’s relationship deteriorates, and they break up. They cannot agree on what to do with the property. Shawn wants to sell the house and move on, so he sues Julie for partition by sale.

At trial, Shawn asserts that he has a right to partition. Julie argues that at one point in their relationship, Shawn agreed that he “would not do anything to the house,” which is an oral agreement waiving partition.

Generally, the criteria for finding a valid waiver to partition is very strict, and it is rare for courts to find a valid waiver. Here, Julie’s claim is insufficient evidence for a waiver, and the court will find that Shawn has a right to partition. Shawn’s partition lawsuit will proceed.

Law Revision Commission Comments (CCP § 872.710)

1976 Addition

Subdivision (a) of Section 872.710 continues in substance the portion of former Section 763 which provided for partition “upon the requisite proofs being made.” It applies to both contested and uncontested trials. In order to make the determination that the plaintiff has the right to partition, the court must find that the plaintiff has an interest in the property sufficient to maintain the action. See Section 872.210. In addition, the court must find the existence of any special conditions prerequisite to partition of interests in particular types of property. See, e.g., Civil Code § 1354 (limitations on partition of interests in condominium property).

Subdivision (b) is based on existing case law. See generally 3 B. Witkin, Summary of California Law, Real Property § 227 (8th ed. 1973). Subdivision (b) does not determine whether a purported waiver of the right to partition is valid but only that a valid waiver is a sufficient defense to the right of partition. The validity of a waiver is determined by case law.

Subdivision (c) is new. It is designed to give the court fairly broad discretion in the case of successive estates.

Assembly Committee Comments

Section 872.710 is one the rare instances among the partition statutes where the Legislature changed the Revision Commission Comment. For the most part, the Assembly Committee either used a word-for-word reiteration of the Revision Commission comment, or opted not to use one at all. This is because the Legislature endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

But here, the Legislature made an addition to the second paragraph of the Revision Commission Comment. The Legislature adds:

“The introductory proviso of subdivision (b) refers to one situation where partition of concurrent interests is not a matter of right – partnership property. See Section 872.730. Subdivision (b) does not affect the law relating to partition of cotenancy property on which a homestead has been declared. See e.g., Squibb v. Squibb, 190 Cal.App.2d 766, 12 Cal.Rptr. 346 (1961) (partition available to one cotenant where homestead declared on interest of other cotenant); contrast Walton v. Walton, 59 Cal.App.2d 26, 128 P.2d 54 (1943) (partition not available to husband where homestead declared on husband’s separate interest by wife).”

In addition, the Revision Commission further fleshed out its recommendation regarding this statute in its overall report. It provided:

“The portion of former Section 763 providing for partition "according to the respective rights of the parties" on "requisite proofs being made" is superseded by Section 872.710. The portion of former Section 763 providing for division of property in partition as a general rule is continued in Section 872.810. The portion that provided for sale of the property if division could not be made without great prejudice is superseded by Section 872.820, providing for sale where sale would be more equitable than division. The portion of former Section 763 that required sale of the property in case of a life estate with contingent remainder is not continued; the general provisions governing manner of partition control. See Article 3 (commencing with Section 872.810) of Chapter 3 of Title 10.5 of Part 2 of the Code of Civil Procedure.” (Id.)

While these comments are helpful for understanding the motivation behind the enactment of this particular statute, ultimately, Section 872.710 is known for the plain language of subdivision (b).

It establishes, beyond any doubt, that if parties are cotenants, partition is a right. There is no showing that needs to be made beyond the plaintiff demonstrating that they are a co-owner. As such, the only viable defense to a partition is “waiver.” Absent proving a waiver of the right exists, the partition cannot be stopped. (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.)

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