Code of Civil Procedure (CCP) Section 873.060 - General Authority of the Partition Referee

Code of Civil Procedure section 873.060 describes the referee’s general authority in overseeing the partition. This statute is important because it allows the referee to take actions that are necessary to carry out the partition though it may not be specified in the court’s order.

Code of Civil Procedure section 873.060 states:

The referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.

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

“Shawn” and “Julie” are an unmarried couple. They decide to buy a 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 house. Shawn wants to sell the house and move on with his life, so he sues for partition by sale.

Eventually, the court orders the property to be sold and the sale proceeds distributed. The court also appoints a referee to oversee the partition by sale.

While putting the property on the market, the referee notices that several parts of the property need to be fixed. Under his authority pursuant to CCP § 873.060, the referee authorizes several repairs to make the property marketable. While the court may not have explicitly given the referee this authority, the repairs were necessary to sell the property which means the referee could take those actions.

1976 Addition

Section 873.060 is new. It makes explicit the referee's general authority to effectuate the partition.

As is the case for many of the partition statutes, section 873.060 does not include a an “official” Assembly Committee Comment from the California Legislature. This is not unusual however, because the Legislature 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.

As to how this statute plays out in practice, litigants should be careful to realize its limitations. Section 873.060 authorizes the referee to take actions necessary to carry out the partition, but that does not mean they are free to engage in activity outside of that scope.

For instance, in a federal case interpreting California law, a referee was appointed to sell three parcels of property. (Kamb v. United States Coast Guard (N.D. Cal. 1994) 869 F.Supp.793, 795.)

During the marketing of the property, the referee hired a consulting firm that discovered some of the underlying land to be contaminated from use by government bodies. So the referee filed a CERCLA claim on behalf of the property owners against the Federal Government.

The Court held that the referee lacked standing. “While this statute provides authority for the plaintiff to bring his own lawsuit pursuant to court authorization, it does not specifically authorize the referee to bring the lawsuit in his own name for the benefit of the property owners.” (Id.)

When it comes to marketing property, it’s not hard to envision a set of circumstances where something similar could happen. For example, the referee could discover that a company negligently installed a septic tank now infecting the property and diminishing its value.

While the owners of the parcel would certainly be entitled to bring a lawsuit, the referee would not. Their only job is to market and sell the property. They are therefore agents of the parties, but only in a limited capacity. They do not have the authority to bring separate lawsuits on behalf of the parties on their behalf.