La Mesa Partition Lawyers
The City of La Mesa is located in the rolling hills of San Diego County and known as the Jewel of the Hills. La Mesa in Spanish translates to “the table” or “the plateau,” which describes its geography. Today, La Mesa is home to over 60,000 residents and over 26,000 housing units. Over 40% of La Mesa homes are owner occupied, suggesting that many La Mesa homeowners jointly own homes. Jointly owned real estate may become a problem if a dispute arises between co-owners.What is a Partition Action?
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.
Generally, a partition action cannot be stopped absent a valid waiver. Virtually universally, the instances in which a court has found a valid waiver have 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.What are the Steps in a Partition Action?
Broadly, a partition action has only relatively simple steps. First, a party files a lawsuit to establish their rights to the property and desire to sell the property. Second, the court determines that the property should be sold, and appoints a “partition referee” (who is frequently a licensed Realtor) to sell the property. Third, the partition referee markets and sells the property and deposits the proceeds into a trust account. Fourth, the court determines how much each party should receive from the proceeds, which should include addressing offsets and claims for contribution in an “accounting.”What are the Common Types of Partition Actions?
Generally, a partition action is the best remedy for disputing co-owners in four broad categories:
- Boyfriend-Girlfriend co-ownership of property;
- Sibling-Sibling co-ownership of property;
- Parent-Child co-ownership of property; and
- Investor-Investor co-ownership of property;
The California Constitution allows for crime victims to receive “restitution from the persons convicted of the crimes causing the losses they suffer.” (Cal. Const., art I, § 28(b)(13)(A).) In a partition action, a victim may be entitled to recover his or her losses incurred as a result of a forced partition action. Recently, the California Court of Appeal addressed an order for restitution for attorney fees and costs the victim incurred in a forced partition action in a case decided by the First District Court of Appeal known as People v. McNeal (2020) 2020 Cal.App.Unpub.LEXIS 4720.)
There, the defendant and the victim took title to Property as joint tenants and the defendant forged the victim’s signature on loan modification documents. The defendant pled no contest to one count of felony forgery of a loan modification agreement. Later, the parties agreed that the defendant would be allowed to withdraw his plea and the matter would be dismissed if he removed the victim’s name from the forged documents within six months. The defendant failed to do so. At the restitution hearing, the trial court ordered victim restitution for attorney fees and costs as a result of the forced partition action. The defendant appealed.
The Court of Appeal affirmed, holding that “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount of loss claimed by the victim or victims or any other showing to the court, and that the restitution order shall be a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.” (People v. McNeal, 2020 Cal.App.Unpub.LEXIS 4720 at *4; Cal. Pen. Code § 1202.4(f).) The Appellate Court found that “economic losses subject to restitution include “actual and reasonable attorney’s fees and other costs of collection accrued by a private entity on behalf of the victim. (Cal. Pen. Code § 1202.4(f)(3)(H).) As a result of the defendant’s fraud and his repeated refusal to take her name off the loan, the victim’s name was on the loan documents without her consent. As such, the victim suffered negative credit consequences and her only option to remove her name was to file the partition action to force the sale of the house. Thus, the Appellate Court determined that the victim incurred attorney fees and costs from the forced partition action as a result of the defendant’s fraud. Thus, People v. McNeal stands for the principle that victims are entitled to restitution to fully reimburse them for their loss.How Underwood Law Firm Can Help
In order to start resolving these situations, you should contact an experienced La Mesa Partition Lawyer as soon as you are ready to start the next chapter of your life.
Learn more here.