Code of Civil Procedure (CCP) Section 873.920 – Contents of Agreement
Code of Civil Procedure section 873.920 outlines the required elements for a partition by appraisal agreement. While the agreement need not take a particular form, it must nevertheless be in writing, filed with the court clerk, and include the below information in order to be valid.
Code of Civil Procedure section 873.920 states:
The agreement shall be in writing filed with the clerk of court and shall include:
- A description of the property.
- The names of the parties and their interests.
- The names of the parties who are willing to acquire the interests.
- The name or names of a person or persons to whose appointment as referee or referees the parties consent.
- The date or dates as of which the interests to be acquired are to be appraised.
- Other terms mutually agreed upon which may include, but are not limited to, provisions relating to abandonment of the action if the appraised value of the interest to be acquired exceeds a stated amount, required deposits on account of purchase price, terms of any credit, title and objections to title, and payment of the expenses of the procedure authorized by this chapter and of costs of the action.
“Shawn” and “Julie” are siblings who inherit a farm from their grandfather. Eventually, the siblings feud over management of the farm and Shawn sues to partition the property by sale.
During the initial stages of the lawsuit, the parties can’t agree to the ownership percentages. Julie insists that she’s a 75 percent owner based on representations from her grandfather. Shawn argues that the parties own the property in equal shares.
Eventually, Julie agrees that the partition should go through. They draft up a document relaying to the court that they are in agreement to partition the property through the appraisal process, where Julie will buy out Shawn. But the agreement filed with the court states that the parties are presently unsure of their ownership interests.
Under section 873.920, this is an invalid agreement to invoke the partition by appraisal process because subsection (b) expressly requires that the agreement state the names of the parties as well as their interests in the property. Because the interests are unknown, and in dispute, partition by appraisal is presently unavailable.
Law Revision Commission Comments (CCP § 873.920)
Section 873.920 is new. It establishes the framework for the agreement of the parties without, however, providing a fixed form of agreement.Assembly Committee Comment
As is the case for many of the partition statutes, section 873.920 does not include an “official” Assembly Committee Comment from the California Legislature. But this is typical. And 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, the important takeaway is that the agreement to partition by appraisal need not take some specific form. Provided that it has the required statutory elements, the agreement will be acceptable.
Some of these required elements are worth digging into. Subsection (b) is of note because recall that under CCP § 873.910, partition by appraisal is not available unless the ownership interests between the parties are undisputed or have been adjudicated. As such, if the parties are in the midst of litigation over where Plaintiff is a 50 or 55% owner, this method of partition is off the table.
Another important element is not from one of the subsections, but in the opening text: “the agreement shall be in writing filed with the clerk of the court.” As such, assuming two parties did agree to this partition method, an oral agreement will not suffice. It needs to be in writing.
Lastly, and as a broader note on partition by appraisal in general, the governing statutes contemplate an actual agreement between the parties. “The unambiguous language of the partition by appraisal statutory provisions, however, requires an agreement among the parties.” (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 598.)
Litigants should take care to keep this in mind. Plaintiffs or defendants cannot force the other parties into this partition method, nor can the court force it upon the parties.
For example, in Cummings, after the trial court concluded that the subject property could not be partitioned in kind, it ordered a partition procedure with two stages. In the first stage, the parties could bid against each other to purchase the property and take title independently. If no party submitted a bid matching or exceeding the minimum amount, the property was to be listed and sold to the public at whatever value could be obtained.
The appellate court held that this procedure was incorrect because “there was no agreement among the parties, written or otherwise, to partition the property by appraisal.” (Id. at 599.)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.