Code of Civil Procedure (CCP) Section 873.130 - Referee Appointed Surveyor
Code of Civil Procedure section 873.130 allows the partition referee to hire a surveyor. This statute is important because the referee still needs court approval to hire a surveyor.
Section 873.120 states:
The referee may, with the approval of the court pursuant to Section 873.110, employ a surveyor with the necessary assistants to aid in making a sale or division of property.
(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 large amount of land as joint tenants and move in together. The property includes a home and vast amounts of forest land.
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 land and move on, so he sues for partition by sale.
The court orders the property to be sold and the sale proceeds distributed. The court appoints a referee to oversee the sale.
Since the property includes large amounts of land, the referee wants to hire a surveyor. The court approves the surveyor pursuant to CCP § 873.130. With this, the referee can continue carrying out the partition.Law Revision Commission Comments (CCP § 873.130)
Section 873.130 continues a portion of former Section 764 with the added requirement for court approval. Court approval is required since the amounts involved may be substantial and means of payment may present a problem.Assembly Committee Comment
As is the case for most of the partition statutes, section 873.130 does not include a an “official” Assembly Committee Comment from the California Legislature. But this is 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.
Here, the comment references repealed section 764 as a provision that outlined the referee’s duties in partitioning the property. In relevant part, former section 764 stated:
“In making partition, the referees must divide the property, and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, pursuant to the provisions of this chapter, designating the several portions by proper landmarks, and may employ a surveyor with the necessary assistants to aid them.”
Commenting on section 764, the Commission wrote, in relevant part:
“The portion of former Section 764 that provided for division of the property by the referee in accordance with the rights of the parties is continued in Section 873.210. The portion relating to employment of a surveyor is continued in Sections 873.110 and 873.130.”
In practice, this statute permits the court to appoint a surveyor, but it requires court approval. This is because employing a surveyor is a substantial expense on the parties. Unless they are truly integral to achieve partition, their appointment will only increase the costs among the parties, and ultimately result in a lower payout after distribution.
This is a welcome change from the way the partition laws used to be set up. It was previously the case that a referee could only employ a surveyor to assist with a partition. Modernly, surveyors are rarely used unless, again, the parties and, ultimately, the court deem them necessary to accomplish the purpose of the lawsuit.