Code of Civil Procedure (CCP) Section 873.270 – Combined Interests of Unknown Parties and Remaining Undivided
Code of Civil Procedure section 873.270 requires the combined interests of multiple unknown parties to remain undivided. This statute is important because the court can later determine the identity of the unknown parties and distribute the property accordingly.
Code of Civil Procedure section 873.270 states
Where the court has determined the combined interests of two or more unknown parties, the entire portion of the property allocated to such parties shall remain undivided.
(Amended by Stats. 1976, c. 73, p. 110, § 6.)What is an example?
“Shawn” and “Julie” are business partners who invest in property together. They find some nice farmland to buy and invest in. They share much of the profits and expenses of the land.
Eventually, Shawn and Julie’s relationship breaks down, and they want to dissolve the partnership. They cannot come to an agreement on what to do with the property. Shawn wants to continue operating his business, so he sues for partition in kind.
Shawn learns that at some point, Julie sold half of her portion of the land to three unknown parties. While the partition lawsuit is ongoing, the parties remain unknown.
The court orders the property to be partitioned in kind. Pursuant to CCP § 873.270, the court orders for the Julie’s portion of the property that she sold to remain undivided.Law Revision Commission Comments (CCP § 873.270)
Section 873.270 continues the portion of former Section 763 that required the court to designate an undivided portion for owners whose interests remain “unknown, or are not ascertained.” See Section 872.640 (court authority to consider rights of unknown owners together). If during the action an unknown party becomes known, his interest may be determined and his portion of the undivided property may be allocated to him.Assembly Committee Comments
As is the case with essentially every partition statute, section 873.270 does not include a an “official” Assembly Committee Comment from the California Legislature. But this is not unusual. 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.
As to comment, it references superseded section 763 as its inspiration. Section 763 stated in relevant part:
“. . .[U]pon the requisite proofs being made [the court] must order a partition according to the respective rights of the parties as ascertained by the court, and appoint three referees therefor, and must designate the portion to remain undivided for the owners whose interests remain unknown, or are not ascertained.”
Commenting on section 763 the Commission stated, in relevant part:
“The portion of Section 763 requiring designation of a portion of the property to remain undivided for owners whose interests remain unknown is continued in Section 873.270.”
Perhaps unsurprisingly, section 873.270 has received little in the way of case law interpretating its provisions. And part of that is due to the fact that physical divisions are a relatively rare sight in the modern real estate landscape.
Even when courts were publishing decisions on section 763, the statute was so long and contained so many different procedural guidelines that courts rarely mentioned its provisions relating to dividing unknown interests.
That said, this statute falls in line with Section 872.640, which states that “where two or more parties are unknown, the court may consider their interests together in the action and not as between each other.”
Thus, if the court will consider unknown interests as one amorphous entity, it makes sense for it to also set aside a division to the unknown parties as a whole as well.