Code of Civil Procedure (CCP) Section 873.710 – Referee's Report of Sale

Code of Civil Procedure section 873.710 outlines what is required to be in the Referee’s report to the court after the property is partitioned by sale. It is an important aspect of every partition because the report is subject to objection or confirmation by the parties and the court.

Code of Civil Procedure section 873.710 states:

1. Upon making a sale of property, the referee shall report the sale to the court.
2. The referee’s report shall contain, in addition to such other information as may be appropriate, all of the following information:
   1. A description of the property sold to each purchaser.
   2. The name of the purchaser.
   3. The sale price.
   4. The terms and conditions of the sale and the security, if any, taken.
   5. Any amounts payable to lienholders.
   6. A statement as to contractual or other arrangements or conditions as to agents’ commissions.
   7. Any determination and recommendation as to opening and closing public and private ways, roads, streets, and easements.
   8. Other material facts relevant to the sale and the confirmation proceeding.

(Amended by Stats. 1976, c. 73, § 6.)

“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 referee finds a buyer a makes an agreement for the sale.

Pursuant to CCP § 873.710, the referee files a report with the court which includes a description of the house, the name of the buyer, the purchase price, the terms and conditions of the sale, any amounts payable to lienholders, and any other relevant facts about the sale. This report will then be subject to confirmation or rejection by the parties on noticed motion to the court.

1976 Addition

Section 873.710 continues the substance of the first sentence of former Section 784 with the added requirements of paragraphs (5)-(8) of subdivision (b).

Like almost every other partition statute, section 873.710 does not include an “official” Assembly Committee Comment from the California Legislature. But this is primarily due to the Legislature’s overall endorsement and 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 signals that the intent of the Legislature was substantially in line with that of the Revision Commission.

As to the Revision Commission comment, it makes mention of former section 784 as being substantively continued by section 873.710. Before being repealed, the relevant section 784 read:

“After completing a sale of property, or any part thereof ordered to be sold, the referees must report the same to the court, with a description of the different parcels of land sold to each purchaser; the name of the purchaser; the price paid or secured; the terms and conditions of sale, and the securities, if any, taken.”

As one can see, the difference between the statutes is not so great, hence the comment’s indication that Section 873.710 is less a revision to the prior statute and more of an addition.

Regardless, section 873.710 is important on account of the protections it provides. By listing out all relevant information pertaining to the sale, it allows for the parties to analyze the sale with the requisite level of scrutiny. This, in turn, allows for the parties to issue objections and for the court to weigh those objections.

Interpreting the former section 784, the Supreme Court stated that the referee’s report was, in essence, a protectionary measure. “No sale made would be valid until reported to and confirmed by the court and if, for any reason, the price realized was so low as to justify the court in concluding that the sale had not been fair to all parties concerned, confirmation would be refused and a resale ordered.” (Schoonover v. Birnbaum (1907) 150 Cal. 734, 736.)

It should be noted that objecting to confirmation does not act as an automatic veto of the sale. Instead, “the court may confirm the sale notwithstanding a variance from the prescribed terms of sale if to do so will be beneficial to the parties and will not result in substantial prejudice to persons interested in the sale.” (CCP § 873.730; Sullivan v. Dorsa (2005) 128 Cal.App.4th 947, 962.)

Nonetheless, the issuance of the referee’s report at least gives the parties the chance to object, and to do so without guessing how, when, and under what terms the property will be sold.

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 for partition, in the middle of litigating a partition action, or just have any questions, please do not hesitate to reach out to our office.