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Partition Actions

A partition action is a forced sale of property by one of the co-owners under court supervision as part of the legal system. These actions often arise from joint ownership of real estate that has led to a dispute between the co-owners. Often, an owner of commonly owned property will feel like they are being held hostage to a difficult co-owner. Fortunately, the law contains a method to end the joint ownership, and provides a path to a fresh start.

Partition actions most often result from joint ownership problems falling into four broad categories:

  • Father/Mother-Son/Daughter tenants in common in real estate;
  • Brother-Sister shared tenants in common in real estate;
  • Investor-Investor shared tenants in common in real estate; and
  • Non-Married Partners shared tenants in common in real estate;

When one of these types of co-owners decides to initiate a partition action, then there are well-known stages to the partition lawsuit. Generally, a partition action has four stages, which include (1) the filing of the lawsuit, (2) the determination of the parties' interests, (3) the appointment of a referee and the sale of the property, and (4) the division of the proceeds from the sale.

Step One—Filing a Partition Lawsuit

In order to file a partition lawsuit, the first thing to do is to be prepared by conducting background research to include in the partition complaint. A partition lawsuit can be brought by any owner of the property. Generally, this means that a party should review the deed or other title document to make sure that they can bring the partition lawsuit in the first place.

Once it is clear that the party is a title owner of the real estate, the partition action complaint should be completed with all of the necessary allegations. The necessary allegations are those that are required by the Code of Civil Procedure for filing a partition action. These allegations generally include an adequate description of the property, a statement of proper jurisdiction and venue, a statement of the property's amenability to partition, and a proper prayer, or request for legal relief. A form of a partition lawsuit can be found here. In addition to a partition complaint, courts in California require a partition lawsuit to be accompanied by other forms required by the California Judicial Council. As these requirements can be technical, most partition lawsuits in California are filed by experienced partition lawyers.

After the partition lawsuit is filed, the other owner or owners are required to file a formal response, or Answer. The formal answer is also subject to the requirements of the Code of Civil Procedure, and must contain a number of specific allegations in order to be legally valid. A form of a partition answer can be found here. These technical requirements are very strict, and the failure to comply with them correctly can lead to what is known as a "demurrer" or an objection that the form is legally defective. A knowledgeable partition lawyer will know the correct way to file an answer to a partition lawsuit.

Step Two—Determination of the Parties' Interests

After all of the other owners to the property have been served with the complaint and related materials, and filed their own legally-valid Answers with the Court, then the court will determine the parties' interests in the property. This process can occur through a motion with the court, a trial, or an agreement between counsel about the nature of the parties' ownership interests.

Generally, the determination of the ownership interests in the property will occur by a simple reference to the deed on file with the county. Sometimes, however, further investigation may be necessary when there are arguments about ownership interests as alleged in the deed. These arguments are generally based on the differences between joint tenants and tenancies-in-common, or about an agreement that the parties made with respect to the property at issue. An experienced partition lawyer will be familiar with all the nuances of deeds, and will be able to provide insight into the different arguments that can be made about the nature of a party's interests as set forth in a deed.

When the ownership interests are determined, this will signal the end of the first phase of the partition action. The formal conclusion of this part will take the form of an interlocutory judgment entered by the court. Code of Civil Procedure section 872.720 states that the court "if the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition."

Step Three—Appointing a Partition Referee

The entry of the interlocutory judgment means that the property is ready for sale. In order for this to occur, the court will appoint a partition referee, or agent of the court to sell it in accordance with the determinations made in the interlocutory judgment. Code of Civil Procedure section 873.510 states that "the referee appointed by the court to make a sale of the property shall sell the property in the manner and following the procedures provided in this chapter."

The sale that occurs is a judicial sale, and the law recognizes that the winning offer for the property is not totally complete until the court confirms the sale. Generally, any person can purchase the property at a partition sale, except (a) the referee, (b) the attorney for a party, or (c) the guardian or conservator of a party. Otherwise, Code of Civil Procedure section 873.690 provides that an innocent purchaser of the property who pays good value will receive good title.

In addition to the power of sale, the partition referee may conduct any acts necessary to completing the sale, and when issues arise, the partition referee may also ask the court for instructions about how to complete the sale.

Step Four—Dividing the Proceeds from Sale through an Accounting

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.

Mediation

Generally, anyone considering filing a lawsuit should consider all of their alternatives, including an informal resolution of the problem. This can take the form of a discussion with the other owner or owners about agreeing to sell the property, negotiating with the co-owner to create a formula to divide the proceeds from the sale, or retaining a lawyer to engage in a mediation with the other owners.

Throughout the partition process, and even on the day of trial, any of the owners can make an agreement about the sale of the property. This can happen through a phone call, through negotiations between the parties' lawyers, or through a mediation session with a retired judge or trained mediator. There are many benefits from a mediation session, including confidentiality provisions contained in the law in Evidence Code sections 1115 through 1129.

Specifically, Evidence Code section 1119, subdivision (a), provides "no evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."

Further, Evidence Code section 1119, subdivision (b), states that "no writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."

Similarly, Evidence Code section 1119, subdivision (c), states, "all communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."

How Can Underwood Law Firm, P.C. Help?

While the formal steps in the partition process can appear relatively simple, many generalist real estate lawyers are unfamiliar with many of the technical aspects included in a partition, and have never litigated one previously, or have handled only perhaps a single partition action in their career.

On the other hand, the Underwood Law Firm, P.C. are often handling almost several dozen partition actions at any given time. By understanding the process, and being familiar with the different aspects of a partition action, we can provide our clients with more valuable service. In order to start resolving these situations, you should contact an experienced Sacramento Partition Lawyer as soon as you are ready to start the next chapter of your life.

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