Code of Civil Procedure (CCP) Section 873.030 - Appointment of Three Referees
Code of Civil Procedure section 873.030 allows courts to appoint three referees to oversee the partition should it choose to do so. This statute is important because multiple referees may help expedite the partition process in situations involving multiple properties or properties with complex geography.
Code of Civil Procedure section 873.030 states:
(a) The court may, with the consent of the parties, appoint three referees to divide or sell the property as ordered by the court.
(b) The three referees so appointed shall have all the powers and may perform all the duties required of one referee.
(Amended by Stats. 1976, c. 73, p. 110, § 6.)What Is an Example?
“Shawn” and “Julie” are an unmarried couple. They decide to buy a home as joint tenants and move in together. Additionally, they want to go into business together, so they buy two other buildings together as investments.
Unfortunately, Shawn and Julie’s relationship doesn’t work out, and they break up. They cannot agree on what to do with the various properties they bought during their relationship. Shawn wants to sell all of the properties and move on with his life, so he sues for partition by sale.
Eventually, the court orders a partition by sale of all the properties. Since there are three properties, however, the court wants to appoint three referees in the interest of efficiency. Shawn and Julie both consent to the appointment of three referees, so the court makes the appointments pursuant to CCP § 873.030. The three referees have all the same powers and duties that one referee would have.Law Revision Commission Comments (CCP § 873.030)
Section 873.030, providing for court appointment of three referees only with the consent of the parties, replaces provisions of former Section 763 that provided for appointment of three referees as a matter of course.Assembly Committee Comment
As is the case for many of the partition statutes, section 873.030 does not include a an “official” Assembly Committee Comment from the California Legislature. This is usual, however, 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.” This demonstrates that the intent of the Legislature was substantially in line with that of the Revision Commission.
That being said, this statute was actually mentioned by the Legislative Digest to the Assembly Judiciary Committee. The digest summarized the law as follows: “Under existing law the court must appoint three referees to divide and sell the property in a partition case, unless the parties consent to one referee. Under this bill, the court must appoint one referee unless the parties consent to three.”
As such, Section 873.030 superseded the three-referee provision of 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 it must… appoint three referees therefor, and must designate the portion to remain undivided for the owners whose interests remain unknown, or are not ascertained; or the court may with the consent of the parties appoint one referee instead of three, and he, when appointed, has all the powers and may perform all the duties required of three referees; and the court must appoint as referee any person or persons to whose appointment all the parties have consented. . .”
Commenting on section 763, the Revision Commission wrote:
“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. The portion that provided for appointment of one referee with the consent of the parties is superseded by Section 873.030, providing for appointment of three referees with the consent of the parties.”
In sum, section 873.030 simply flipped former section 763 around. Having three referees for every partition sale was just too burdensome on the court, and the parties, especially considering that the referee’s compensation comes out of the sales price for the property.
Now, with just a single referee, the partition by sale process is much smoother and more efficient. The single referee prepares the report, and sells the property, without having to worry about input from two other concurrent referees.