Code of Civil Procedure (CCP) Section 873.720 – Motion to Confirm or Set Aside Sale
Code of Civil Procedure section 873.720 outlines the procedural and notice requirements for a motion to confirm or set aside the referee’s report of sale issued according to CCP § 873.710. This statute is important because it clearly states that any party may move to either confirm, or set aside the sale, provided they give the requisite level of notice.
Code of Civil Procedure section 873.720 states:
- A purchaser, the referee, or any party may move the court to confirm or set aside the sale.
- The moving party shall give not less than 10 days’ notice of motion to:
- The purchaser if the purchaser is not the moving party; and
- All other parties who have appeared in the action.
(Amended by Stats. 1976, c. 73, § 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 and a referee is assigned, who negotiates a purchase agreement with a buyer.
Pursuant to CCP § 873.720, Shawn’s attorney asks the court to confirm the sale of the house and gives notice of this motion to Julie and to the buyer.Law Revision Commission Comment (CCP § 873.720)
“Section 873.720 continues the substance of the third sentence of former section 784.”Assembly Committee Comment
Like almost every other partition statute, section 873.720 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 873.720. Before being repealed, the relevant section 784 read:
“Thereafter, any purchaser, the referee, or any party to the action may, upon 10 days’ notice to the other parties who have appeared therein, and also to the purchaser if he be not the moving party, move the court to confirm or set aside any sale or sales so reported.”
As one can see, the difference between this portion of former section 784 and section 873.720 is minimal. Both statutes provide confirmation of rescission of the sale, provided the moving party gives ten days’ notice of the motion.
The reason this statute exists is for the protection of the parties. After the court orders the property to be sold, the partition referee will sell the property and issue a report of sale under section 873.710. This report must include all relevant information related to the sale, such as the price, identity of the buyer, etc. And it is this report which must be set aside or confirmed. By listing out all relevant information pertaining to the sale, the report 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.)
As such, section 873.720 is merely part of the sales confirmation procedure in that it sets out the required amount of notice for the confirmation hearing. This is not to say the statute isn’t important; only that its functionality is limited and straightforward. It sets out who may move to confirm the sale, and the time limits for doing so.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 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.