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Code of Civil Procedure (CCP) Section 873.020 - Appointment of More Than One Referee for Partial Division and Sale

Code of Civil Procedure section 873.020 allows courts to appoint two referees if the property is to be partially divided and sold. This statute is important because it increases efficiency in allowing the court to appoint multiple referees.

Code of Civil Procedure section 873.020 states:

The court in its discretion may appoint a referee for sale and a referee for division, or may appoint a single referee for both.

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

What Is an Example?

“Shawn” and “Julie” are an unmarried couple. They decide to buy some land as joint tenants. The land includes a single-family residential home and several acres of farmland. The couple start living together in the house.  

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, while Julie wants to keep the property. Shawn sues for partition by sale.

The court determines that the house will be sold and the sale proceeds distributed, but the remaining land will be partitioned in kind between the parties. Pursuant to CCP § 873.020, the court appoints a referee to oversee the sale of the house and appoints another referee to oversee division of the farmland. The court could also appoint one referee to oversee both the sale and the division.

Law Revision Commission Comments (CCP § 873.020)

1976 Addition

Section 873.020 is new. It makes clear the court's discretion to appoint referees with different functions where property in an action is to be both divided and sold.

Assembly Committee Comments

As is typically the case, section 873.020 does not include an “official” comment from the California Legislature governing its application. Instead, the Assembly Committee impliedly endorses the Revision Commission above, as the Legislature substantially 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.” This demonstrates that the intent of the Legislature was equally in line with that of the Revision Commission.

As to the statute, the comment makes clear that it merely grants the court the statutory basis to appoint different referees to accomplish different functions.

This builds off of Section 872.830. That provision provides that “if, in making a determination whether sale would be more equitable than division of the property, the court finds that sale and division of proceeds for part of the property would be more equitable than division of the whole property, the court may order that such part be sold and the remainder divided.” (CCP § 872.830.)

That section envisions a unique set of circumstances where the property is capable of being partitioned in two different ways to achieve the most equitable result between the parties. Simply put, it “gives the trial court authority to order a partial division of the property and a sale of the remainder if it would be more equitable than a division of the whole.” (Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 754.)

Take the facts of Richmond, for instance. There, the property subject to partition was a 5,000 acre cattle ranch. Some parties wanted portions of the land, others wanted to receive distributions from a sale. The Court of Appeal held it proper for the lower court to issue successive interlocutory judgments dividing up some of the land to certain parties, and selling the rest.

Cases like Richmond, though, are somewhat of a rarity. Modernly, many properties are simply incapable of partition by division due to zoning restrictions on subdividing land. Additionally, owners of large pieces of real estate, like the 5,000 acre family ranch described above, have usually built in safeguards to prevent partitions, like express trust instructions or executed contracts between co-owners restricting the right.

Nonetheless, in the off-chance that a property is capable of being divided in kind and via sale, this statute gives the court authority to appoint separate referees to accomplish that result.

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