Escondido Partition Lawyers

The land of Escondido was originally purchased in 1886 by the Escondido Land & Town Company. This purchase led to the development of the city as a town and agricultural center. In April 2023, Escondido home prices were down 6.3% compared to last year, selling for a median price of $757K. On average, homes in Escondido sell after 14 days on the market compared to 9 days last year. There were 76 homes sold in April this year, down from 146 last year. Today, the city of Escondido is growing rapidly and residents of Escondido who own real estate may face disputes with co-owners. Generally, the best Escondido Partition Lawyers usually find partition action to be the best remedy for disputing co-owners in four broad categories:

  • Split real estate dispute;
  • Brother-Sister real estate dispute;
  • Investor-Investor real estate dispute; and
  • Significant other real estate dispute
What is a Partition Action in California?

Partitions are lawsuits that split up the property between multiple co-owners so that each can take their equity out of the home. The prototypical partition are between siblings, former romantic partners, or business partners. Both own parts of the property, but only one wants to end the relationship and take their money out. Partitions enable this to happen, usually ending with a court-ordered sale of the subject property.

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.

Generally, a partition action cannot be stopped absent a valid waiver. The instances in which a court has found a valid waiver have generally involved some sort of written contract or adverse possession of property. As such, many parties try to stop a partition action through mediation, or a buy-out agreement. In most instances, the parties to a partition action can benefit from creative lawyering by those who are familiar with the different options for resolving real estate disputes. The best Escondido Partition Lawyer will be able to share information on this process with you.

What are the steps in a Partition Action?

The first step to a partition action is to petition the court for a partition of the property. In order to petition the court, a litigant must file a legally valid complaint for partition. As noted above, the litigant must be a co-owner of the subject property in order to have standing to file a partition complaint. (CCP § 872.210.)

Second, after filing the complaint, a litigant must then obtain an interlocutory judgment of partition in the correct procedural form. An interlocutory judgment is a temporary judgment ordered before the close of trial during the litigation of the case. Under Code of Civil Procedure section 872.720, the court must enter an interlocutory judgment when the court finds that the Plaintiff in a partition action is entitled to a partition. In order to obtain an interlocutory judgment, a litigant must establish their right to partition by proving they have an ownership interest in the subject property.

Third, if the court finds that a litigant has an ownership interest in the subject property and grants an interlocutory judgment of partition, the court will then appoint a partition referee to oversee the partition of the property. A partition referee is a neutral third party appointed by and accountable to the court to assist the court in matters related to partition actions. (CCP § 873.510.)

Fourth, Once the referee has provided the court with their report, the court must determine the proper method for partitioning the subject property. The court determines the proper method of partition by determining which method of partition is more equitable.

Fifth, once the court has determined the proper method of partitioning the subject property, the court will then order a final judgment of partition, and the property will be partitioned according to the proper method determined by the court. If the court orders a partition by sale, there must be an accounting to distribute the proceeds of the sale in strict compliance with the requirements of the evidentiary code. A top Escondido Partition lawyer will be familiar with the process.

Can you recover attorneys’ fees in a partition action?

The Court may award attorneys’ fees in the partition action that are paid by a party to the action for the common benefit of all the co-owners. (CCP § 872.010.) The Supreme Court has spoken on this issue directly, holding that under former section 796, the predecessor to the current partition cost statute, “counsel fees may be allowed ... for services rendered for the common benefit even in contested partition suits.” (Capuccio v. Caire (1932) 215 Cal. 518, 528-529 (Capuccio).)

Moreover, cases interpreting those sections continue to permit the allocation of attorney fees in contested partition actions. (Forrest v. Elam (1979) 88 Cal.App.3d 164, 174.) From these authorities it is evident that the “common benefit” in a partition action is the proper distribution of the “‘respective shares and interests in said property by the ultimate judgment of the court.’ ” (Capuccio, 215 Cal. at p. 528.) This sometimes will require that “ ‘controversies’ ” be “ ‘litigated’ ” to correctly determine those shares and interests but this ultimately can be for the common benefit as well. The fact that a party resists the partition does not change this. (See Randell v. Randell (1935) 4 Cal.2d 575, 582 [“The presence and litigation of controversial issues between all the parties does not preclude the allowance of attorney's fees for services connected with such issues where such services are found to be for the common benefit of the parties.”].) A knowledgeable Escondido Partition Attorney will be able to give you good advice on these issues.

What are claims for “contribution”?

Following the sale of the property, the referee will divide the proceeds of the sale among the parties in according to amounts expended for the "common benefit."

When the sale is confirmed by the court, the court may enter an order about the proceeds of sale. Under the law, the sale proceeds must be applied in a defined order. Specifically, Code of Civil Procedure section 873.820 states that the sale proceeds go towards (a) payment of expenses of the sale, (b) payment of the other costs of partition, (c) payment of any liens on the property in priority, (d) and distribution of the remainder to the parties in proportion to their shares as determined by the court.

Generally, the last part of the priority list includes what is commonly known as an "accounting" or a determination of whether one party has contributed more than their fair share to the property in the form of taxes, improvements, or other benefits for the property. For example, if one party is a 50% owner of the property, but has paid all of the property taxes for the property, then that property owner will have a claim for the remaining 50% above their interest in the property. An experienced partition lawyer will be able to help a co-owner determine their claims to the proceeds and make these arguments to the court in an effective way. An experienced Escondido Partition Attorney will be intimately familiar with these matters.

A Partition Case Study: Thacher v. Touitou (2006)

A partition is a legal procedure in which the court shall segregate and terminate the common interests in a piece of real property. In partition actions for successive estates in property, a partition is only authorized where it is “in the best interests of all the parties” (CCP § 872.710). The following paragraphs discuss how the court determines that partition is indeed in the best interests of all the parties involved in Thacher v. Touitou (2006) 2006 WL 1742503.

In Thacher, Ducia Hentell as trustee of the Hentell Family Trust, brought this suit seeking partition of the parties’ interests in a condominium. Unfortunately, Hentell died during the pendency of these proceedings in January 2006, so in May 2006 the court granted the motion to substitute Michelle Thacher as successor trustee of the Trust.

Prior to 1997, the condominium subject to this suit was solely owned by the Trust. In early 1997, Hentell and Prosper Touitou became friends and companions. After several months, Touitou moved into the condominium to live with Hentell. By September 1997, the parties executed a “Cohabitation Agreement” to which the parties agree that it granted Touitou a life estate in the condominium.

For seven years, Hentell and Touitou lived in the condominium together until in May 2003, Hentell moved out to move into an assisted living facility due to her failing health. Touitou continued to live in the condominium. In September 2004, Hentell brought the action for partition, seeking to force a sale of the condominium to pay the expenses of her assisted living facility and ongoing medical care.

After a two-day bench trial, the trial court granted Hentell’s request for partition. In its opinion, the trial court stated that after considering the factors from CCP § 872.710(c), it determined that the partition was in the best interests of the parties. Specifically, the trial court found that partition was in Hentell’s best interest because her failing health suggested that she would not be able to return to the condominium, and the condominium was her only significant asset, which she needed to sell to pay for her ongoing medical care. Additionally, the trial court concluded that a partition was in Touitou’s best interests because he was also suffering from progressive and debilitating illnesses and soon would probably need assisted living care for himself. Lastly, the trial court found that the parties’ relationship had become a source of conflict and therefore the primary goal of the life estate, for Hentell and Touitou to cohabit, was “no longer possible due to unanticipated circumstances.” Touitou appealed.

Touitou argued that the record did not support the trial court’s finding that a partition of the condominium was in his best interest. In an action for a life estate and remainder interest, the action is governed under § 872.710(c). Under this subdivision, “partition as to successive estates in the property shall be allowed if it is in the best interest of all the parties.” The factors that the court should consider, which the trial court claimed to consider, included the “circumstances under which the estates were created and change in the circumstances since creations of the estates, and all other factors that would be considered by a court of equity having in mind the intent of the creator of the successive owners” (CCP § 872.710(c)).

Viewing “the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor”, Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, the California Court of Appeal of the Fourth District concluded that Touitou’s challenge was without merit. It found that there was substantial evidence finding that partition was in the best interests of all the parties, including Touitou.

The Court of Appeal states four reasons the trial court found that that partition was in the best interest of Touitou. These reasons were: (1) Touitou suffered from serious medical conditions and would probably need assisted living himself in the near future; (2) Touitou would receive a significant economic benefit from partition; (3) Touitou could easily use the money he received from partition to rent an identical apartment in the same complex for the duration of his life expectancy; and (4) partition would remove the strain of Touitou's relationship with Hentell and her family. After reviewing the record, the Court of Appeal determined that these findings were each supported by substantial evidence and therefore supported the trial court’s finding that partition was in all the parties’ best interest.

In response to Touitou’s specific challenge that the trial court’s statement that he would probably need assisted living in the future was speculation, the Court of Appeal concluded that the evidence supported the finding. Touitou, who was 82 years old at the time, testified that he had significant heart problems and had been hospitalized several times, including in the week before trial. This along with other testimony that Touitou did not address on appeal, the Court of Appeal found that there was a likelihood that Touitou would need assisted living.

Touitou also argued that the trial court’s finding that a partition would eliminate the strain of the parties’ relationship was fruitless. He based this on the contention that there was no strain on the relationship if he and Hentell were not cohabiting. However, Touitou’s own testimony contradicted this as he testified that even with Hentell living elsewhere, his relationship with her and her family made him feel like a “slave of this family.” Therefore, the Court of Appeal found that Touitou’s own testimony supported this trial court finding as well.

Lastly, Touitou contended that the trial court’s finding that partition would afford him a substantial economic benefit was erroneous because he claimed that the money he would receive was based on an estimate of his life expectancy that, if accurate, would result in a “mere wash for him.” Concluding that this contention was also without merit, the Court of Appeal stated that Touitou ignored that in the trial court’s view, which was supported by the evidence, the cash was more beneficial to Touitou than a life estate of equivalent value. The lump sum would allow Touitou to adjust his future living arrangement according to his changing needs. This trial court finding was supported again by the evidence.

The Court of Appeal concludes its opinion by noting the fact that Touitou failed to cite any record evidence that a partition was not in his best interest. While Touitou hinted that moving, even to another identical apartment was a burden to him, he did not cite any evidence to support that contention. Contrary to his contention on appeal that the present situation was in his best interest, Touitou testified at trial that his living situation was “like a dog in…jail.” The Court of Appeal therefore, affirmed the trial court’s finding.

A court may order a partition as to successive estates if it finds that a partition is in the best interests of the parties. Here, based on the evidence and Touitou’s own testimony as to his living situation, the Court of Appeal found that the trial court rightfully found that a partition was in the best interests of the parties.

How the Underwood Law Firm Can Help

A court’s determination of ownership interests in a property depends on the facts and circumstances of each particular case. Factors such as agreements and who pays for certain expenses for the property can ultimately affect the outcome of a partition case. If you are considering partition as an option, or find yourself defending one, then you may benefit from good legal advice on the topic. Please contact Underwood Law Firm, P.C., for an initial consultation.

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