Code of Civil Procedure (CCP) Section 873.650 – Contents of the Notice of Sale
Code of Civil Procedure 873.650 outlines what is required to be in the notice of sale before the property is sold in a partition. This statute is important because proper notice is required for partition sales. Failure to adhere to the statute’s requirements could result in the sale being overturned, so it’s essential that they are followed in the correct manner.
Code of Civil Procedure section 873.650 states:
(a) The court shall prescribe the contents of the notice of sale, which shall include a description of the property, the time and place of sale, and a statement of the principal terms of sale. In place of the principal terms of sale, the notice may refer to an order of the court or to a written statement containing such information which may be inspected at the place of business of the referee or the referee's attorney.
(b) A notice of private sale shall state a place where bids or offers will be received and a day on or after which the sale will be made.
(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. The court concludes that the property will be sold at a private sale.
Notice of the sale must also be given. Pursuant to CCP § 873.650, the court includes a description of the property, the time and place of sale, and the principal terms of the sale in the notice. Since this is a private sale, the court states that bids will be received at the courthouse on the day of the sale.Law Revision Commission Comments (CCP § 873.650)
Section 873.650 continues and expands the requirements of former Sections 775 and 782 that the notice of sale contain the principal terms of sale. See Section 873.610 and Comment thereto (court prescribes principal terms, including liens to which the sale is subject).
Subdivision (a) requires a reference to the “time and place of sale.” In the case of a private sale (subdivision (b) ), the place of sale will normally be the place of business of the referee. For a comparable provision, see Prob.Code § 782.
It should be noted that the court may permit variation from the published terms of sale if to do so will benefit the parties and will not prejudice the rights of other interested persons. See Section 873.730(b).Assembly Committee Comments
As is the case with almost all of the partition statutes, section 873.650 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 here, it makes mention that it continues portions of former section 775, which stated in relevant part:
“If sold at public auction the notice must state the terms of sale and if the property or any part thereof is to be sold subject to a prior estate, charge or lien, that must be stated in the notice.” Section 873.650 also superseded section 782, a portion of which stated that “In all cases of sales of property the terms must be made known at the time . . .”
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, prescribing notice only to the parties, for instance, instead of the public, could result in a sale being invalid, and runs the risk of the sale being overturned on appeal.
Parties should therefore take great care to ensure that the notice of sales procedures prescribed under statute are followed to the letter.