Code of Civil Procedure (CCP) Section 874.130 – Enforcement of Lien

Code of Civil Procedure section 874.0130 explains how liens for repayment of partition costs are ultimately satisfied. Under the statute, if multiple parties have liens for repayment, none of them have priority against each other.

Code of Civil Procedure section 874.130 states:

Upon application of a person entitled to a lien imposed under this article and upon a showing of good cause, the court may order a sale of all or a portion of the property before or after judgment for the benefit of all such lien claimants without priority among them.

What is an Example?

“Shawn” and “Julie” are siblings who inherit property from their parents. Even though they own equal shares, Shawn treats the home as his own, and refuses to allow Julie onto the property. Fed up with being denied the benefits of the home, Julie sues for partition.

As part of this process, Julie procures a title report before the Complaint is filed. Later, when the Court allows the partition by sale to proceed, a partition referee is hired to prepare the home for listing on the open market. The referee also contracts with a contractor to fix up the roof so that the home will get a better sales price.

Eventually, the home is sold. Pursuant to section 874.010, half of Julie’s attorneys fees must be paid out of Shawn’s shares of the proceeds. Julie is also entitled to be reimbursed for half the cost of the title report. Additionally, the fees for the referee and the contractor come out of both parties’ shares of the sales proceeds.

All of the above are considered “costs” of partition under section 874.010. And costs are to be evenly split by the parties to a partition action under section 874.040, unless the court comes to some other equitable arrangement. As such, Julie must be reimbursed from the sales proceeds.

The way that Julie is reimbursed is via the court imposition of a lien for the repayment amount against Shawn’s share of the sales proceeds. Shawn, too, will be entitled to a lien against Julie if he has costs to be reimbursed under section 874.040.

Law Revision Commission Comments (CCP § 874.130)

1976 Addition.

Section 874.130 is new. Liens imposed under this article have priority over all other liens but have no priority among themselves. The remedies provided in this section and in Section 874.140 are cumulative.

Assembly Committee Comment

As is the case for many of the partition statutes, section 874.130 does not include an “official” Assembly Committee Comment from the California Legislature. But this is the norm. 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.

Turning to the comment and statute, they can be a bit tricky to understand at first without needed context. Recall that under section 874.120, the costs of partition are imposed on each respective party in the form of a lien, before the proceeds are distributed to the parties.

Once the court determines that a set amount of costs are to be paid by one party to another, that payment becomes a lien on the share of the paying party. That lien can also accrue interest from the date of entry of judgment, pursuant to Code of Civil Procedure section 685.010.

As such, all that section 874.130 provides is that those liens for repayment of costs do not have priority between themselves. Instead, when the property is sold, the court attempts to distribute the payment evenly until both liens are simultaneously paid off.

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.

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