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Concord Partition Lawyers

Concord is the largest city in Contra Costa County, California and was founded in 1869 as Todos Santos by Don Salvio Pacheco II, a noted Californio ranchero, but was changed to “Concord.” Conveniently located near San Francisco and the world-renowned wine country, Concord has a bustling downtown area, a burgeoning arts and food scene, and beautiful surrounding landscapes of mountains, valleys, and vineyards. As one of the older cities in California, residents often find the need for a Concord Partition Lawyer to resolve joint ownership disputes. There are at least four other scenarios where a Concord Partition Lawyer can be helpful:

  • Investor-Investor co-ownership of property;
  • Boyfriend-Girlfriend co-ownership of property;
  • Sibling-Sibling co-ownership of property; and
  • Parent-Child co-ownership of property
What is a Partition Action in California?

A partition action is a judicially-supervised forced sale of real estate. In California, each co-owner has an “absolute” right to partition the property. “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the co-tenants will be promoted by refusing the application nor temporarily postponing the action.” (Priddel v. Shankie (1945) 69 Cal.App.2d 319, 325 (emphasis added).) Thus, any owner of real estate (whether 5%, 50%, or 95%) has the right to bring a partition action in California.

Basically, any person who is an owner of real estate can bring a partition action in California. Code of Civil Procedure section 872.710, subdivision (a), states "A partition action may be commenced and maintained by any…owner of…such property." California Civil Code section 872.210 provides a property owner with the "absolute right to partition" absent a valid waiver. Thus, a partition action can be brought by anyone who no longer wants to own jointly owned real estate, other than spousal property. The best Concord Partition Lawyer will be able to share information on this process with you.

What are the Steps in a Partition Action?

First, a partition action is filed. A partition action can be filed if one co-owner of real property or a piece of real estate wishes to sell the property or piece of real estate in question but the other co-owners or co-tenants do not wish to sell their ownership rights.

Second, the court may appoint a court referee to oversee the sale of the property in question. The sales procedure includes that all parties agree to the terms and conditions of the sale in writing. If the parties can not agree, as partition actions are usually very contested issues, then the referee that the court appointed may recommend terms and conditions to the court. Then the court will hold a hearing to decide whether or not to accept those terms and conditions.

Third, in California, the property’s value will be appraised via a third party or another property appraisal with no ties to any of the parties. While this is not required in all states, it is recommended to make sure that all parties are on the same metaphorical page as to the potential sale proceeds of the property in question.

Fourth, the referee will conduct the sale in the method most agreeable to all of the party’s goals. This can be via a public auction or a private sale. Regardless of the specific method of partition by sale, the court will determine if the sale was “fair.” If it is decided that the property’s sale proceeds had a lack of proper notice, the sale amount is not within reasonable the value of the property, or if the proceeds were unfair- the court would rule that the property will be up for sale again.

Lastly, the court will order that the proceeds of the sale, minus any court litigated or approved offsets or costs, will be distributed equitably amongst all of the co-owners or people with interest in the property. A top Concord Partition lawyer will be familiar with the process.

What are Claims for “Contribution”?

Before the sales proceeds are distributed among the parties, a court-ordered accounting will determine the charges and credits upon each co-owner’s interest. These credits are taken out of the net proceeds before the balance is divided equally. (Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal.App.2d 539 (“Nelson”).)

“When a cotenant makes advances from his own pocket to preserve the common estate, his investment in the property increases by the entire amount advanced. Upon sale of the estate, he is entitled to his reimbursement before the balance is equally divided.” (Nelson, 230 Cal.App.2d, at p. 541, citing William v. Koyer (1914) 168 Cal.369.)

As such, a party to a partition action must produce and gather their evidence and make sure that it is presented to the court so they can receive full credit for the value that they have added to the property. While a party may have a right to these credits under the law, ultimately, they will not be counted unless they can be presented in the proper form. An experienced Concord Partition Attorney will be intimately familiar with these matters.

Can You Recover Attorneys’ Fees in a Partition Action?

Section 874.040 gives courts only two options in apportioning the costs and fees of partition: by ownership interest or by some other equitable apportionment. (see Finney v. Gomez (2003) 111 Cal.App.4th 527, 545 (Finney).)

Notably, appellate courts have found the statutory language of Section 874.040 to give courts broad and equitable discretion. (Lin v. Jeng (2012) 203 Cal.App.4th 1008.)

This sentiment that the record must support the allocation of attorney’s fees in an amount greater than disclosed by title is echoed in Stutz, where the appellate court held the trial court erred in apportioning 100% of the attorney’s fees and costs of a partition to the respondent. The appellate court recognized that trial courts are free to apportion fees and costs in an equitable manner yet held that the record must support such an arrangement in “any manner other than according to the respective interests of the parties in the property.” (Stutz, 122 Cal.App.3d 1, 5.)

For example, where a party refuses to simply resolve the issue where the other party was willing to sell, then a court has the authority to order a different amount of fees than disclosed by title. (Forrest v. Elam (1979) 88 Cal.App.3d 164, 174.) In other words, the resistance to selling the property may be a factor that a court considers in awarding attorneys’ fees in a partition action. A knowledgeable Concord Partition Attorney will be able to give you good advice on these issues.

A Partition Case Study: Lien v. Lucky United Properties Investments, Inc

Whether a party bringing a partition action prevails in the end can depend on many different factors, such as the parties’ actual ownership interests, each side’s contractual rights with respect to the real property sought to be partitioned, and the timing of the assertion of such rights. One example of a common right present in many land sale contracts is the right of first refusal.

A right of first refusal is defined as “A potential buyer's contractual right to meet the terms of a third party's higher offer. For example, if Beth has a right of first refusal on the purchase of Sam's house, and if Terry offers to buy the house for $300,000, then Beth can match this offer and prevent Terry from buying it.” Right of First Refusal, BLACK'S LAW DICTIONARY (11th ed. 2019).

Although an owner of real property generally has an absolute right to partition, the right to partition may be waived under certain circumstances. One such circumstance is where the parties have signed a partition agreement containing an express waiver of the right to partition. See CCP § 872.710; Penasquitos, Inc. v. Holladay (1972) 27 Cal.App.3d 356, 358. Another is where waiver of the right to partition is somehow implied. In certain cases, a party also may not be entitled to the right to partition if its ownership interest is refuted, such as through a valid exercise of the right of first refusal.

The following paragraphs discuss the right to partition and how the right of first refusal affected efforts to partition property in Lien v. Lucky United Properties Investments, Inc. (2008 WL 5049750).

In Lien v. Lucky United Properties Investments, Inc., a contractual agreement gave plaintiffs Lien and Yen the right to sell a certain San Francisco property, jointly owned by plaintiffs and defendants, but subject to defendant Woo’s right of first refusal. Over several years starting in 1995, disputes arose after the parties failed to agree on the sale of the property. When the parties were approached by a promising buyer in 1999, defendant Woo exercised his right of first refusal by having his attorney send a letter stating that he was exercising his right of first refusal to bar the sale of the property. Plaintiffs disagreed that this was a valid exercise of the right of first refusal. Litigation subsequently ensued.

In 2000, Lien and Yen filed a complaint seeking a declaration by the court that they owned a 62.5 percent interest of the property and seeking partition by sale. After a bench trial in 2001, because the trial court initially found that Woo had not validly exercised his right of first refusal, it ruled in favor of Lien and Yen’s partition claim and awarded them attorneys fees. However, after Woo later appealed in 2005, the California First District Court of Appeal reversed the trial court’s judgement as well as the trial court’s order that the property be partitioned.

The Court of Appeal reasoned that the partition order and relief granted earlier to Lien and Yen was predicated on an erroneous determination that Woo did not validly exercise his right of first refusal. In fact, Woo’s exercise of his right of first refusal was valid. After determining the trial court erred by finding that Woo did not validly exercise his right of first refusal, the Court of Appeal remanded the case for a new trial where Lien and Yen could present any evidence they might have that would establish an affirmative defense to Woo's purported exercise of the right of first refusal.

In 2006, plaintiffs Lien and Yen filed yet another complaint against various defendants, including successors in interest of the property, seeking a declaration that they owned a 62.5 percent interest in the property and requesting that the property be partitioned. Defendants moved for summary judgment based on res judicata (see below), arguing they were entitled to prevail as a matter of law based on the Court’s earlier 2005 judgment that had already rejected Lien and Yen's assertion that they possessed a 62.5 percent interest in the property that entitled them to partition.

The legal doctrine of “res judicata,” also known as “claim preclusion,” prevents relitigation of the same cause of action in a second suit between the same parties (or parties in privity with them). (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) The elements for applying the doctrine include: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.)

In Lien v. Lucky United Properties Investments, Inc., plaintiffs Lien and Yen filed causes of action requesting a declaration that they together owned a 62.5 percent interest in the property and seeking partition. Lien and Yen alleged the same causes of action in their prior 2005 cross-complaint. The court's 2005 judgment rejecting Lien and Yen's causes of action for declaratory relief and partition was both final, because Lien and Yen abandoned their appeal challenging it, and on the merits. Finally, the parties against whom the doctrine was asserted, Lien and Yen, were the same parties as in the prior action. After applying the doctrine of res judicata, the Court of Appeal ruled in favor of defendants and rejected plaintiffs appeals seeking partition.

How the Underwood Law Firm Can Help

As we’ve seen, whether a party bringing a partition action ultimately prevails can depend on many different factors, including the parties’ actual ownership interests, each side’s contractual rights with respect to the real property sought to be partitioned, as well as prior final judgements. The valid assertion of certain contractual rights, such as the right of first refusal, as well as prior court judgements, may potentially shape the outcome of a partition action.

As there are many different ways to waive the right of partition, and you are considering it as an option, then you may benefit from good legal advice on the topic. If you find yourself contemplating a partition action, or faced with defending one, then please contact Underwood Law Firm, P.C. for an initial consultation.

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