Code of Civil Procedure (CCP) Section 874.312 - Definitions

Code of Civil Procedure section 874.312 is an important section of the partition statute that sets out the definitions of terms used in the California partition statute. Specifically, this section defines the terms used in the statute which are unique to partition.

Code of Civil Procedure section 874.312 states:

For purposes of this chapter, the following definitions apply:

1. “Determination of value” means a court order determining the fair market value of the property under Section 874.316 or 874.320 or adopting the valuation of the property agreed to by all cotenants.
2. “Partition by sale” means a court-ordered sale of the entire property, whether by auction, sealed bids, or open-market sale conducted under Section 874.320.
3. “Partition in kind” means the division of property into physically distinct and separately titled parcels.
4. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

The Partition of Real Property Act was an outgrowth of a law review article titled Historic Partition Law Reform (2019) Texas A&M Legal Research Paper Series No. 19-27 by Thomas W. Mitchell (“Law Reform”). (see also Thomas W. Mitchell, Reforming Property Law to Address Devastating Land Loss, 66 Ala.L.Rev. 1, 9, 29 (2014).

Heirs property ownership often is even more unstable than more conventional tenancies-in-common. This enhanced instability arises from the interaction between multi-generational patterns of intestate succession. (Law Reform, p. 69.) Given that it only takes one tenant-in-common—no matter how small her fractional interest—to request a court to order a forced sale, each additional tenant in common in any given tenancy increases the instability of the common ownership. (Id.).

Previously, advocates “overestimated the degree to which partition sales have been a source of black land loss.” (Thomas W. Mitchell, Destabilizing the Normalization of Rural Black Land Loss (“Destabilizing”), 2005 Wis. L. Rev. 557, 581 (2005); see Faith Rivers, Inequity in Equity (Temp.Po.&Civ.Rts.L.Rev. 2007) 1, 31 (“There is little empirical data documenting claims of African-American land loss” [due to partitions].) (“Inequity”).) Others have claimed that low will-making rates for African-Americans represent a present day manifestation of the ways in which African Americans after the conclusion of the Civil War were deprived of access to attorneys and even to basic information about estate planning, but this theory has not been verified in any meaningful way. (see Law Reform p. 68.)

In developing the Act, the drafting committee drew upon a subset of tools more wealthy families utilize in developing private agreements governing their common real property ownership, some aspects of partition law and other sources of law from some States, and some aspects of partition law from a limited number of other countries. (see Law Reform, p. 73.) Overall, the Act establishes a hierarchy of remedies that are designed to help heirs’ property owners preserve their property when possible or alternatively preserve as much of their real estate wealth as possible in those instances in which a partition by sale in fact would be the most equitable remedy. (Id.) Though the Act contains many enhanced legal protections for heirs’ property owners, there are three major provisions of the act that make substantial changes to the extant partition law.

Given that some have claimed that property law often evolves at the pace of geologic change, it is rather remarkable that in many States the Act is changing a property law that almost seemed impervious to change. (see Law Reform, p. 72.) To this end, the lack of any significant developments in partition law in most States over the course of 100 to 200 years or so led many to believe that archaic, State partition laws simply would persist in part based upon tradition. (Id.)

The Partition of Real Property Act seeks to address consequences of this type of property ownership, and which California adopted in 2022.

In the 2022 amendments to the partition statutes, the legislature added subheadings and omitted a significant number of the definitions included in this section. While the current statute defines partition by sale, in kind, and record, this section previously contained five other definitions. These included terms relating more to heirs and heirs’ property like ascendent, collateral, descendant, heirs’ property, relative. This amendment followed the larger goal of the legislature in the 2022 amendments, shifting the statute from its focus on heirs’ property to encompass other partition matters as well.

For example, “Julie” and “Shawn” are siblings who own a single-family home, and they disagree on how to divide it. Shawn sues Julie for partition. Shawn wishes to get a determination of value for the property as partition by sale is the most equitable outcome. The determination of value means a court would order a determination of the fair market value of the property. This allows the property to be sold and the proceeds divided under supervision of the court. Partition by sale is more equitable and applicable to a single-family home as such a property cannot easily be divided.

If Julie and Shawn were two disputing farmers wishing to partition a field, partition in kind would be more equitable and feasible. Assuming they were co-owners this would involve splitting the field 50/50. In this instance because a field is dividable and the farmers wish to continue using it, partition in kind would be an appropriate solution.

In order to partition either a home or field, Julie and Shawn must have a right as owners to partition. Assuming this is the case, there would also need to be no agreement waiving their right to partition on the record.

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.