Code of Civil Procedure (CCP) section 873.010 - Referee Appointment and the Court’s Power and Duties

Code of Civil Procedure section 873.010 outlines what courts can order a referee to do in partition lawsuits. This statute is important because it describes the breadth of court authority when dealing with partition referees.  

Code of Civil Procedure section 873.010 states

(a) The court shall appoint a referee to divide or sell the property as ordered by the court.

(b) The court may:

(1) Determine whether a referee's bond is necessary and fix the amount of the bond.

(2) Instruct the referee.

(3) Fix the reasonable compensation for the services of the referee and provide for payment of the referee's reasonable expenses.

(4) Provide for the date of commencement of the lien of the referee allowed by law.

(5) Require the filing of interim or final accounts of the referee, settle the accounts of the referee, and discharge the referee.

(6) Remove the referee.

(7) Appoint a new referee.

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

“Shawn” and “Julie” are an unmarried couple. They decide to buy a nice home as joint tenants and move in together.

Unfortunately, Shawn and Julie’s relationship doesn’t work out, and they break up. They cannot agree on what to do with the property. Shawn wants to sell the property and move on with his life, so he sued for partition by sale.

Eventually, the court holds that the property will be sold, and the sale proceeds divided. To oversee the sale, the court appoints a referee. The court instructs the referee to put the property up for sale and find potential buyers. The court also fixes the compensation for the referee’s services and provides payment for the referee’s reasonable expenses. Additionally, the court requires the referee to file a final accounting.

The referee performs all of the required services and finds a potential buyer for the property. The sale is executed, and the referee reports a final accounting to the court. The court then discharges the referee after his duty is finished.  

1976 Addition

Section 873.010 sets out some, but not all, of the court's powers with respect to the referee.

Subdivision (a), providing for court appointment of a single referee, supersedes provisions of former Section 763 that required the consent of the parties for the appointment of a single referee.

Subdivision (b)(1) is new. Whether a bond is required depends on the circumstances of the case.

Subdivision (b)(2) is new; it gives express recognition to the instructions procedure. It is a valuable tool for resolving ambiguities and matters not otherwise covered and, if properly used, serves to expedite the action. See also Section 873.070 (petition for instructions).

Subdivision (b)(3) states the substance of former Section 768 in providing for court allowance of fees and expenses of referees. See Section 874.010 and Comment thereto (costs incurred in partition action).

Subdivision (b)(4), permitting the court to fix the date of commencement of the lien of the referee (see Section 874.120), is new. It protects the referee in case of later settlement and dismissal of the action. For authority of the court to fix the date of commencement of liens of third persons furnishing services, see Section 873.110.

Subdivision (b)(5) is new. It recognizes the need for and practice of the court to receive and pass upon the account and final report of the referee and thereafter to discharge the referee. This applies particularly in, but is not limited to, sales transactions.

Subdivision (b)(6) restates the substance of the introductory portion of former Section 766. It broadens this provision to apply to the referee for sale as well as for division.

The official Legislative Comment to section 873.010 is a word-for-word reiteration of the Revision Comment above, save for one addition.

When the Revision Commission was recommending changes to the partition statutes, they did not actually propose subdivision (b)(7). That subdivision is entirely a creation of the Legislature.

As such, the Assembly Committee added: “Subdivision (b)(7) is new; for specific provisions authorizing appointment of a new referee, see Sections 872.630(b) (new referee for determination of interests of lienholders) and 873.290(b) (new referee for preparation of new report on division). See also Sections 873.730 and 873.740 (authority of court to order new sale).”

As to the other elements of the comment, it references former Section 763.

Section 763 was a confusing provision that outlined the procedure for partitions. In relevant part, section 763 stated:

“. . . [U]pon the requisite proofs being made [the court] must order a partition according to the respective rights of the parties as ascertained by the court, and appoint three referees therefor. . .or the court may with the consent of the parties appoint one referee instead of three. . . The court may. . .if necessary, appoint new referees.”

Commenting on section 763, the Commission wrote, in relevant part:

“The portion of former Section 763 providing for appointment of three referees as a matter of course is superseded by Section 873.010, providing for appointment of one referee as a matter of course.”

Section 873.010 also superseded section 768. Section 768 stated:

“The expenses of the referees, including those of a surveyor and his assistants, when employed, must be ascertained and allowed by the Court, and the amount thereof, together with the fees allowed by the Court, in its discretion, to the referees, must be apportioned among the different parties to the action, equitably.”

In practice, this statute simply function to codify the breadth of court authority concerning referees. As to its construction, though, there is one interesting wrinkle.

The statute states that the court “shall” appoint a referee. But litigants should not take this to mean that a referee is always necessary. To the contrary, the Fifth District Court of Appeal interpreted section 873.010 to mean “the word ‘shall’ as used in said section should be construed to require the appointment of a referee only where it is determined that a referee is necessary or would be desirable or helpful…” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 755.)