Code of Civil Procedure (CCP) Section 873.240 – Division by Lots or Parcels
The California Partition Law begins at Code of Civil Procedure section 872.010 and ends at Code of Civil Procedure section 874.323. Section 873.240 requires property with more than one parcel to be partitioned along those divisions. This statute is important because the court does not want to disturb the rights of the parties.
Code of Civil Procedure section 873.240 states
Where real property consists of more than one distinct lot or parcel, the property shall be divided by such lots or parcels without other internal division to the extent that it can be done without material injury to the rights of the parties.
(Amended by Stats. 1976, c. 73, p. 110, § 6.)What is an example?
“Shawn” and “Julie” are business partners who decide to buy some farmland as investments. The land consists of two parcels separated by a river. Shawn and Julie hold title to the farmland as joint tenants.
Unfortunately, Shawn and Julie’s relationship doesn’t work out, and they want to dissolve the partnership. They cannot agree on what to do with the property. Shawn wants to sell the property and move on, so he sues for partition by sale.
The court orders the property to be partitioned in kind. Pursuant to CCP § 873.240, the court divides the farmland along the boundaries of the two parcels. This division did not materially injure the rights of the parties.Law Revision Commission Comments (CCP § 873.240)
Section 873.240 is new. Cf. former Section 782 (requiring separate sale of “distinct farms or lots”). In order to facilitate division by individual lots, the parties may join additional property whether by complaint or by cross-complaint.Assembly Committee Comments
As is the case with nearly every partition statute, section 873.240 does not include a an “official” Assembly Committee Comment from the California Legislature. But this is normal. That’s 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.
Legislative intent aside, the comment here makes reference to former section 782. That provision stated: “in all cases of sales of property the terms must be made known at the time; and if the premises consist of distinct farms or lots, they must be sold separately.”
Commenting on this statute being repealed, the Revision Commission stated, “the last portion, requiring that separate farms or lots be sold separately, is superseded by Section 873.620, which provides for separate sale of known lots or parcels unless the interests or rights of the parties will be materially prejudiced thereby.”
Here, the logic behind this revision makes sense. Rather than dividing each lot individually, the parties can join each lot to the partition action in order to dive by the lots between the parties in an equitable manner.
Interestingly, there is a question as to what exactly constitutes “distinct” lots and parcels. While there is no recent case law interpreting section 873.240, a 1951 appellate decision interpreting former section 782 provides some guidance.
“There was evidence indicating that one of the parcels “was so indivisibly linked with the balance of the property, both physically and with respect to value, that it could not be separated therefrom without great detriment.” (Sting v. Beckham (1951) 105 Cal.App.2d 503, 506.) Thus, section 782, requiring separate sales of each separate lot, was inapplicable. (Id.)
This suggests that even where the lots are technically divided, perhaps through a legal subdivision, this does not mean that the provisions of Section 873.240 automatically govern.