Code of Civil Procedure (CCP) Section 873.640 – Notice of Sale

Code of Civil Procedure section 873.640 outlines the requirements for the notice of a partition sale. This statute is important because notice is an essential aspect of a partition sale. Failure to adhere to its guidelines could result in the sale being overturned.

Code of Civil Procedure section 873.640 states:

(a) Notice of the sale of real or personal property shall be given in the manner required for notice of sale of like property upon execution. Such notice shall also be given to every party who has appeared in the action and to such other interested persons as may have in writing requested the referee for special notice.

(b) Where real and personal property are to be sold as a unit, notice of the sale may be in the manner required for notice of sale of real property alone.

(c) The court may order such additional notice as it deems proper.

(d) Where the court orders a new sale of property pursuant to Section 873.730 or Section 873.740, notice of sale shall be as provided in this section.

(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 it as joint tenants. They move in and start their new life 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 sold and the sale proceeds distributed. Pursuant to CCP § 873.630, the court gives notice of the sale to Shawn and Julie. Additionally, the court gives notice to anyone who requested special notice of the sale in writing.

Law Revision Commission Comments (CCP § 873.640)

1976 Addition

Subdivision (a) of Section 873.640 continues the requirement of former Section 775 that real property be sold at public auction “upon notice given in the manner required for the sale of real property on execution.” Subdivision (a) extends this provision to personal property and to both public and private sales. For the requirement found in the execution provisions (Section 692) that notice be given to the debtor, subdivision (a) substitutes a requirement that notice be given to parties who have appeared and to other interested persons who have requested notice. This preserves the right of interested persons to receive notice without imposing the burden of widespread notice to persons who may have no interest. It should be noted that inadequate notice of sale to the parties or persons who have requested notice may be a ground for setting aside the sale. See Section 873.730.

Subdivision (b) is new.

Subdivision (c) gives the court discretion to require additional notice. In some types of sales, the court may deem it desirable to order such other types of notice as display or classified advertisement.

Subdivision (d) makes clear that, if at the confirmation hearing the court orders a new sale, full notice of the new sale must be given. This continues a provision of former Section 784.

Assembly Committee Comments

As is the case with almost all of the partition statutes, section 873.640 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 comment, it makes mention of now 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.”

Section 873.640 also superseded section 784, which stated, in relevant part:

“After completing a sale of property, or any part thereof ordered to be sold, the referees must report the same to the court . . . and . . . the court may vacate the sale and direct another to be had, of which notice must be given . . .”

As to how this statute plays out in practice, it’s important to recognize that these notice requirements for sales cannot be avoided, and for good reason.

“Viewing the statutory framework as a whole, it is evident the intent was to ensure that members of the public receive notice and have an opportunity to bid on property during a partition sale, whether at public auction or private sale.” (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 600.)

This is logic because, by maximizing the potential pool of bidders, one might reasonably hope to secure a higher sales price on the property. (Id.) As such, failure to adhere to these notice requirements is certain to result in a risk of the sale being overturned on appeal.

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