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Code of Civil Procedure (CCP) Section 873.530 – Determination of Partial Public Auction or Private Sale

Code of Civil Procedure section 873.530 allows the court to determine whether to sell part of the property in a public auction and part in a private sale. Like its sister statute in 873.520, the court’s determination on this matter is limited by the broad language that it be whatever is “more beneficial to the parties.”

Code of Civil Procedure section 873.530 states:

Part of the property may be sold at public auction and part at private sale if it appears that to do so will be more beneficial to the parties.

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

What is an example?

“Shawn” and “Julie” are an unmarried couple who want to start a life together. They find some farmland that has a residence nearby. They buy the farmland and the home as joint tenants with a one-half interest each. They then 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 all the property 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. Shawn is open to the residence being sold on a public auction, but he wants the farmland to be sold through a private sale. Shawn argues that this would be the most beneficial to the parties because he wants the farmland to be sold to someone who will actually use it for agricultural purposes.

The court finds Shawn’s argument persuasive. Pursuant to CCP § 873.530, the court orders the house to be sold at a public auction and the farmland to be sold at a private sale.

Law Revision Commission Comments (CCP § 873.530)

1976 Addition

Section 873.530 continues the substance of a portion of the first sentence of former Section 775.

Assembly Committee Comments

As is the case with almost all of the partition statutes, section 873.530 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.

Nevertheless, the comment here makes reference to superseded section 775, which stated, in relevant part:

“All sales of real property made by referees under this chapter must be made at public auction to the highest bidder, upon notice given in the manner required for the sale of real property on execution unless in the opinion of the court it would be more beneficial to the parties interested to sell the whole or some part thereof at private sale; the court may order or direct such real property, or any part thereof, to be sold at either public auction or private sale as the referee shall judge to be most beneficial to all parties interested. . .”

The Commission commented on this provision, stating in relevant part:

“The portion of former Section 775 that provided for partial public and partial private sale is continued in Section 873.530.”

As to how this statute plays out in practice, there are few, if any cases actually interpreting this statute’s provisions. And, again, courts have little in the way of guidance as to what factors must be considered in determining whether partial public and private sales would be in the best interests of the parties. (see Cummings v. Dessel (2017) 13 Cal.App.5th 589, 599.)

Nonetheless, it’s possible to imagine a situation in which this statute might come into play. It would probably require the property to already be subdivided into separate lots, and for certain parcels to not so valuable as to waste fees placing them on the MLS.

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