Code of Civil Procedure (CCP) Section 873.670 – Conduct of Sale at Public Auction
Code of Civil Procedure section 873.670 outlines how a sale at public auction will be conducted. The statute is self-explanatory, and helpfully references that the surrounding procedure should mirror that of execution sales. Litigants should keep in mind that sales of the property at public auction also require the sale of the personal property associated with the real property.
Code of Civil Procedure section 873.670 states
- A sale at public auction to the highest bidder shall be held in the county in which the action is pending or such other place as may be specified by the court.
- Unless otherwise ordered by the court, personal property shall be present at the sale.
- The sale may be postponed by the referee by public declaration as provided for sales upon execution.
“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 public auction, based on the requests of the parties. An auction is held in the county where the house is located and sold to the highest bidder, along with items of personal property belonging to the parties.Law Revision Commission Comments (CCP § 873.670)
Section 873.670, providing procedural detail for sales at public auction, is new. It generally follows execution procedure. See Section 694.Assembly Committee Comments
As is the case with most of the partition statutes, section 873.670 does not include a an “official” Assembly Committee Comment from the California Legislature. But this is the norm. 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 essentially in line with that of the Revision Commission.
As to the comment, it makes mention of Code of Civil Procedure section 694. That statute was repealed in 1982, but its text is not so important. Instead, what matters is that the Revision Commission, and thus the Legislature in all likelihood, intended that public partition sales at auction follow similarly to execution sales.
Execution is the process by which money judgments can be enforced. After obtaining a money judgment, the judgment creditor creates a judgment lien by recording an abstract or certified copy of the judgment with the county recorder. (CCP § 697.310.)
That lien attaches to all real property interests owned by the judgment debtor in that county. (CCP § 697.340.) After obtaining a judgment lien, the creditor must take additional steps to collect on the judgment, and the usual method is to levy on specific property by writ of execution. (Wells Fargo Financial Leasing, Inc. v. D&M Cabinets (2009) 177 Cal.App.4th 59, 69.)
The judgment creditor then obtains from the county clerk a writ of execution, directing the sheriff or other levying officer to enforce the judgment. (CCP §§ 699.510, 699.520.) In other words, the officer (e.g., the sheriff) then sells the property in order to satisfy the judgment.
As to how execution sales work, the procedure is laid out in Code of Civil Procedure section 701.570. Just like with the partition sale at a public auction, the property needs to go to the highest bidder. The sale must also be in the county where the property is located, just like with partitions.
The only key difference is regarding personal property. Section 873.670 states that personal property “shall be present at the sale.” But it does state how that personal property is to be sold or otherwise disposed of.
Here, the execution statute provides some guidance. It states that “if personal property capable of manual delivery is to be sold, it shall be within the view of those who attend the sale,” unless the court orders otherwise. (CCP § 701.570 (c).) It also provides that personal property may be sold separately or in lots. And that the judgment debtor (or, applicably, the cotenants) may request that items of property be sold in a particular order.
As such, the gist of Section 873.670 is that, if the property is to be sold at a public auction, then the procedure should follow roughly that of an execution sale, where both the real property and personal property are sold to the highest bidder.Contact Us
Here at Underwood Law Firm, our knowledgeable attorneys are here to help navigate the complex web of case law and statutes surrounding partitions. If you are thinking of filing a partition, are already in the midst of a partition suit, or just have any questions, please do not hesitate to reach out to our office.