Code of Civil Procedure (CCP) Section 873.680 – Conduct of Private Sale
Code of Civil Procedure section 873.680 outlines the process for the sale of property when the court orders a partition by private sale. This statute is important on account of its provisions that the sale must occur within a year, and that offers for purchase must be in writing. Ensuring that these steps are followed is crucial to securing a proper sale of the property in a partition.
Code of Civil Procedure section 873.680 states
- A private sale shall not be made before the day specified in the notice of sale but shall be made within one year thereafter.
- The bids or offers shall be in writing and left at the place designated in the notice at any time after the first publication or, if none, the posting of the notice.
“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. The house is put up for sale two weeks after the notice of sale. Written offers are submitted to the referee, who accepts the best offer.Law Revision Commission Comments (CCP § 873.680)
Comment. Section 873.680 continues the substance of the last sentence of former Section 775, which provided for private sale in the manner required in private sales of real property of estates of decedents. Section 873.680 incorporates comparable provisions from Probate Code Sections 782 and 783.Assembly Committee Comments
As is the case with most of the partition statutes, section 873.680 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 reference to the last sentence of former Section 775, now repealed, which stated: “If the sale is ordered made at either public auction or private sale, the sale at private sale shall be conducted in the manner required in private sales of real property of estates of deceased persons.”
This outright confusing language essentially stated that private partition sales were to be the same as those effected under the Probate Code. In fact, the Law Revision Commission expressly referenced Probate Codes section 782 and 783.
Those codes have long been since repealed, but they once stated “In the case of a private sale, the notice must state a place where bids or offers will be received, and a day on or after which the sale will be made, which day must be at least fifteen days from the first publication or posting of the notice, and the sale must not be made before that day, but must be made within one year thereafter; . . .” (Estate of Hunter (1961) 194 Cal.App.2d 859, 863.)
Today, however, the Probate Code section of private sales mirrors the language of the Code of Civil Procedure. Under Probate Code section 10306, so too must the sale occur within a year of notice being issued, and so too must bids be in writing and left at the place designated in the notice of sale.
With all that said, though, even these provisions are somewhat archaic. As a simple fact for partition sales, the parties can always agree to sales procedures regardless of what the statutes might provide for. (CCP § 873.600.) As such, statutes such as this can be rendered somewhat moot. Instead, most defendants, upon realizing they cannot stop the sale, will opt for the property to be listed on the MLS and for offers to be received via the sales agent acting as the partition referee.
Indeed, the Law Revision Commission even recognizes this, stating in its discussion of partition sales that “the court should have all available tools helpful in obtaining the maximum sale price for the property, including the use of brokers, minimum bids, and additional notice by advertising in regional or national publications.”
This signals that, though there may be a few provisions relating to how partition sales procedure is conducted, the parties and the courts can always step in and apply additional guidelines where need be. Nonetheless, this statute can be relevant if parties are opting for sale purely under the provisions of the Code of Civil Procedure.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.