Code of Civil Procedure (CCP) Section 873.140 - Referee Appointed Auctioneer

Code of Civil Procedure section 873.140 allows the referee to hire an auctioneer. This statute is important because the referee may have to hire an auctioneer to oversee the property’s sale if it is sold through auction.

Code of Civil Procedure section 873.140 states:

The referee may, with the approval of the court pursuant to Section 873.110, employ an auctioneer, authorized to act as such in the locality, to conduct a public auction and to secure purchasers by such method for any property to be sold at public auction.

(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.

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 home 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. After some investigation, the referee recommends that the property is sold through a public auction.

To manage the public auction, the referee wishes to hire an auctioneer. Pursuant to CCP § 873.140, the court approves the auctioneer. With this, the auctioneer can conduct the public auction of the property.

Law Revision Commission Comments (CCP § 873.140)

1976 Addition

Section 873.140 is new. It is derived from Probate Code Section 760.5 (sale of tangible personal property of estate).

Assembly Committee Comments

As is the case for most of the partition statutes, section 873.140 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.

As to comment, it references Probate Code section 760.5. But that provision was repealed in 1987. Now, the operative version of that former statute is Probate Code section 10151.

That version of the statute clarifies that “authorized to operate as such in the locality” language (also found in CCP § 873.140) is archaic. Instead, the auctioneer must merely be licensed under the Auctioneer and Auctioneering Licensing Act (Bus. & Prof. Code §§ 5700-5791.5.)

In addition, if the auctioneer is to be paid by the sales proceeds, the amount paid shall be the amount the court, in its discretion, determines to be a reasonable compensation for the services of the auctioneer. (Prob. Code § 10167.) Similarly with a partition, it is doubtful that the court would permit an auctioneer to take out of the sales proceeds at an unreasonable rate of compensation.

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