Code of Civil Procedure (CCP) Section 873.600 – Court Order of Sale
The California Partition Law begins at Code of Civil Procedure section 872.010 and ends at Code of Civil Procedure section 874.323. Section 873.600 requires the court to order a sale in accordance with the parties’ written agreement if one exists. This statute is important because it allows parties the freedom to determine terms of the partition sale.
Code of Civil Procedure section 873.600 states
Notwithstanding any other provision of this title, the court shall order sale by such methods and upon such terms as are expressly agreed to in writing by all the parties to the action.
(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 a nice home in Los Angeles and buy the home as joint tenants. Shawn and Julie move in and begin living 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 a partition by sale, and allows the parties a chance to agree on how to sell the property. Shawn and Julie, and their attorneys, begin negotiating over an agreement. After much back-and-forth, the parties finally draw up a written agreement on selling the property, including a provision requiring the property to be sold through a public auction. The court orders for the sale to be executed in accordance with the parties’ agreement.Law Revision Commission Comments (CCP § 873.600)
Section 873.600 is new. It permits the parties to agree to sales procedures that may vary from the procedures prescribed in this chapter. In order for Section 873.600 to be operative, the consent of all parties is necessary whether or not they have appeared. As a consequence, this section cannot be used where unknown owners are made parties unless a guardian ad litem has been appointed for them. On the other hand, the consent of persons named as parties who are not served and who have not appeared is unnecessary since their interests will not be affected by the judgment in the action.
It should be noted that the court also has authority to prescribe additional sales procedures. See Section 873.610.Assembly Committee Comments
As is the case with almost all of the partition statutes, section 873.600 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 the substance of the comment and the statute, it makes clear that Section 873.600 is essentially a provision that gives parties the chance to agree to their own unique sales procedures, instead of foisting that responsibility on the courts or referee. Thus, if both parties want the sale to be for cash, for instance, they can agree to that limitation and the sale must be carried out in that manner.
In 2005, the Sixth District Court of Appeal addressed this statute at length, stating that it “is intended only to require that the court give effect to the unanimously expressed wishes of the parties in formulating an interlocutory judgment and deciding what terms to include in the order of reference or notice of sale.” (Sullivan v. Dorsa (2005) 128 Cal.App.4th 947, 962.)
But the Court also limited its holding, stating that the statute applies only prior to sales. “Section 8723.600 cannot reasonably be understood to grant the owners a preemptory veto over a sale that has already been made and is now brought for confirmation. To make owner’s belatedly expressed preferences binding on the court at that stage would license them to trifle with the court, wasting its time and that of other participants, and ultimately reducing the efficacy of judicial partition sales by reducing the willingness of purchasers and others to participate in such transactions.” (Id.)