Partition Statutes - 2

The court may:

• Direct a sale on credit for the property or any part thereof.
• Prescribe such terms of credit as may be appropriate.
• Approve or prescribe the terms of security to be taken upon the sale, including the manner in which title to the security is to be taken, whether in a single instrument or several instruments, according to the interests of the parties.

(Added by Stats. 1976, Ch. 73.)

• Notice of the sale of real or personal property shall be given in the manner required for notice of sale of like property upon execution. Such notice shall also be given to every party who has appeared in the action and to such other interested persons as may have in writing requested the referee for special notice.
• Where real and personal property are to be sold as a unit, notice of the sale may be in the manner required for notice of sale of real property alone.
• The court may order such additional notice as it deems proper.
• Where the court orders a new sale of property pursuant to Section 873.730 or Section 873.740, notice of sale shall be as provided in this section.

(Added by Stats. 1976, Ch. 73.)

• The court shall prescribe the contents of the notice of sale, which shall include a description of the property, the time and place of sale, and a statement of the principal terms of sale. In place of the principal terms of sale, the notice may refer to an order of the court or to a written statement containing such information which may be inspected at the place of business of the referee or the referee's attorney.
• A notice of private sale shall state a place where bids or offers will be received and a day on or after which the sale will be made.

(Added by Stats. 1976, Ch. 73.)

• The court may order securities listed on an established stock or bond exchange, and personal property that is perishable, that will depreciate in value if not promptly disposed of, or that will incur loss or expense by being kept, to be sold upon such notice and conditions as may be appropriate.
• Unless otherwise ordered by the court, title to property sold pursuant to this section passes without court confirmation. The referee is responsible for the actual value of the property until, after return and proper showing, the court approves the sale.

(Added by Stats. 1976, Ch. 73.)

• A sale at public auction to the highest bidder shall be held in the county in which the action is pending or such other place as may be specified by the court.
• Unless otherwise ordered by the court, personal property shall be present at the sale.
• The sale may be postponed by the referee by public declaration as provided for sales upon execution.

(Added by Stats. 1976, Ch. 73.)

• A sale at private sale shall not be made before the day specified in the notice of sale but shall be made within one year thereafter.
• The bids or offers shall be in writing and left at the place designated in the notice at any time after the first publication or, if none, the posting of the notice.

(Added by Stats. 1976, Ch. 73.)

• The following persons shall not purchase property sold in the action directly or indirectly:
  1. The referee.
  2. The attorney of a party.
  3. The guardian or conservator of a party, unless for the benefit of the ward or conservatee.
• All sales contrary to this section are void except that a sale to a bona fide purchaser following a sale contrary to this section shall not be disturbed.

• Upon making a sale of property, the referee shall report the sale to the court.
• The referee's report shall contain, in addition to such other information as may be appropriate, all of the following information:
  1. A description of the property sold to each purchaser.
  2. The name of the purchaser.
  3. The sale price.
  4. The terms and conditions of the sale and the security, if any, taken.
  5. Any amounts payable to lienholders.
  6. A statement as to contractual or other arrangements or conditions as to agents' commissions.
  7. Any determination and recommendation as to opening and closing public and private ways, roads, streets, and easements.
  8. Other material facts relevant to the sale and the confirmation proceeding.

(Added by Stats. 1976, Ch. 73.)

• A purchaser, the referee, or any party may move the court to confirm or set aside the sale.
• The moving party shall give not less than 10 days' notice of motion to:
  1. The purchaser if the purchaser is not the moving party; and
  2. All other parties who have appeared in the action.

(Added by Stats. 1976, Ch. 73.)

• At the hearing, the court shall examine the report and witnesses in relation to the report.
• The court may confirm the sale notwithstanding a variance from the prescribed terms of sale if to do so will be beneficial to the parties and will not result in substantial prejudice to persons interested in the sale.
• The court may vacate the sale and direct that a new sale be made if it determines any of the following:
  1. The proceedings were unfair or notice of sale was not properly given. If there is no finding at the hearing of unfairness or improper notice, the sale may thereafter not be attacked on such grounds.
  2. The sale price is disproportionate to the value of the property.
  3. It appears that a new sale will yield a sum that exceeds the sale price by at least 10 percent on the first ten thousand dollars ($10,000) and 5 percent on the amount in excess thereof, determined after a reasonable allowance for the expenses of a new sale.

(Added by Stats. 1976, Ch. 73.)

• If at the hearing under Section 873.730 a responsible bidder makes a written increased offer that exceeds the sale price by at least 10 percent on the first ten thousand dollars ($10,000) and 5 percent on the amount in excess thereof, the court in its discretion may do either of the following:
  1. Vacate the sale and direct that a new sale be made.
  2. Vacate the sale, accept the increased offer, and confirm the sale to the offerer.
• Except as provided in subdivision (c), the amount by which an increased offer exceeds the sale price is determined on the basis of the gross amount of the increased offer including any commission on the increased offer to which an agent may be entitled.
• Where in advance of sale the court has so ordered or the parties have so agreed, if an increased offer is made by a party to the action who is not represented by an agent, the amount by which an increased offer of a nonparty exceeds the sale price is determined on the basis of the net amount of the increased offer excluding any commission on the increased offer to which an agent may be entitled.

(Added by Stats. 1976, Ch. 73.)

The amount of agents' commissions on the sale, if any, shall be fixed by the court and divided or limited in the manner provided for private sales of real property in decedents' estates.

(Added by Stats. 1976, Ch. 73.)

• Upon confirmation of a sale, the court shall order the referee to execute a conveyance or other instrument of transfer, to collect the proceeds, take security, and perform other acts required to consummate the sale.
• The order may direct the referee concerning the distribution, deposit, or securing of sale deposits and sale proceeds.

(Added by Stats. 1976, Ch. 73.)

If the purchaser, after the confirmation of the sale, fails to pay the sale price, the purchaser is subject to the court's jurisdiction and to further proceedings in the action. Upon such failure, a party, or the referee, may upon notice move the court to order either of the following forms of relief:

• Resale of the property upon notice as provided in this chapter. If any loss is occasioned thereby, the referee may recover the amount of such loss and costs and expenses incurred, including a reasonable attorney's fee, from the purchaser who failed to pay.
• Maintenance by the referee of an action against the purchaser for the amount of the sale price. If the referee recovers judgment, the referee shall be awarded a reasonable attorney's fee against the purchaser.

(Added by Stats. 1976, Ch. 73.)

Where the purchaser is a party or lienholder entitled to a share of the proceeds of sale, the referee may:

• Take the purchaser's receipt for so much of the proceeds of sale as belongs to the purchaser.
• Take security, or other arrangement satisfactory to the referee, for payment of amounts which are or may become due from the purchaser on account of the expenses of sale, general costs of the action, and costs of the reference.

(Added by Stats. 1976, Ch. 73.)

The court may make orders relating to the closing of a sale after confirmation, including escrow and closing provisions and, if the referee and purchaser so agree and the court upon noticed motion determines it will not result in substantial prejudice to the parties, may make adjustments varying the terms of sale based on after-discovered defects.

(Added by Stats. 1976, Ch. 73.)

• Upon fulfillment of the terms of sale, the referee shall execute a conveyance or other instrument of transfer to the purchaser.
• The conveyance or transfer of real property and the order authorizing such conveyance or transfer shall be recorded in each county in which the property is located.

The court shall order the proceeds of sale and any security therefor to be paid, transferred, deposited in court, placed in trust, or invested in State of California or United States government obligations or interest-bearing accounts in an institution whose accounts are insured by an agency of the federal government, to or for the benefit of the persons in interest entitled thereto, as may be appropriate or as specifically provided in this article.

(Added by Stats. 1976, Ch. 73.)

The proceeds of sale for any property sold shall be applied in the following order:

• Payment of the expenses of sale.
• Payment of the other costs of partition in whole or in part or to secure any cost of partition later allowed.
• Payment of any liens on the property in their order of priority except liens which under the terms of sale are to remain on the property.
• Distribution of the residue among the parties in proportion to their shares as determined by the court.

(Added by Stats. 1976, Ch. 73.)

Where a part only of the property is sold, a tenant for life or years in an undivided share of the whole property may have his estate equitably set off in any part of the property not sold by way of complete or partial satisfaction of his share of the proceeds.

(Added by Stats. 1976, Ch. 73.)

• The court shall ascertain the proportion of the proceeds of sale that will be a just and reasonable sum for the satisfaction of the estate of a tenant for life or years and shall order such amount distributed to him or held for his benefit.
• The court shall ascertain the proportional value of any vested or contingent future right or estate in the property and shall direct such proportion of the proceeds of sale to be distributed, secured, or held in such a manner as to protect the rights and interests of the parties.
• Notwithstanding any other provision of this section, in the case of an estate for life or defeasible estate with remainder over, the court may direct that the entire proceeds of sale be placed in trust as provided in this section upon a showing that the establishment of such a trust is economically feasible and will serve the best interests of the parties. The court shall appoint a trustee, upon security satisfactory to the court, who under court supervision shall invest and reinvest the proceeds, pay the income of the investments, if any, to the life tenant or owner of the defeasible interest, and upon termination of the life or defeasible estate, deliver or pay the corpus of the trust estate to the remainderman. The court shall retain jurisdiction over the settlement of the accounts of the trustee and in all matters necessary for the proper administration of the trust and the final distribution of the trust fund.

(Added by Stats. 1976, Ch. 73.)

When the proceeds of the sale belonging to persons who are parties to the action, whether known or unknown, have not been allocated among such parties, the action may be continued as between such parties, for the determination of their respective claims thereto, which must be ascertained and adjudged by the court. Further testimony may be taken in court, or by a referee, at the discretion of the court, and the court may, if necessary, require such parties to present the facts or law in controversy, by pleadings, as in an original action.

When the interests of all parties are undisputed or have been adjudicated, the parties may agree upon a partition by appraisal pursuant to this chapter.

(Added by Stats. 1976, Ch. 73.)

The agreement shall be in writing filed with the clerk of court and shall include:

• A description of the property.
• The names of the parties and their interests.
• The names of the parties who are willing to acquire the interests.
• The name or names of a person or persons to whose appointment as referee or referees the parties consent.
• The date or dates as of which the interests to be acquired are to be appraised.
• Other terms mutually agreed upon which may include, but are not limited to, provisions relating to abandonment of the action if the appraised value of the interest to be acquired exceeds a stated amount, required deposits on account of purchase price, terms of any credit, title and objections to title, and payment of the expenses of the procedure authorized by this chapter and of costs of the action.

(Added by Stats. 1976, Ch. 73.)

• Any party to the agreement may, upon noticed motion, apply to the court for approval of the agreement.
• If the court determines that the agreement complies with Section 873.920 and that the terms and conditions are equitable, it shall approve the agreement and stay any pending division or sale of the property.

(Added by Stats. 1976, Ch. 73.)

The court shall appoint one referee or, if provided in the agreement, three referees to appraise the property and the interests involved. The referee shall report the valuations and other findings to the court in writing filed with the clerk.

(Added by Stats. 1976, Ch. 73.)

Any party to the agreement or the referee, upon 10 days' notice to the referee if the referee is not the moving party and to the other parties to the agreement, may move the court to confirm, modify, or set aside the report.

(Added by Stats. 1976, Ch. 73.)

At the hearing, the court shall examine the report and witnesses. If the court determines that the proceedings have been regularly conducted, that transfer of title to the interests may regularly be made, and that no facts appear which would make such transfer inequitable, it shall confirm the report and order the interests transferred to the acquiring parties in proportion to their respective interests, or in such other proportion as is set out in the agreement. The order shall be conditioned upon payment of the amounts fixed as the purchase price and any other amounts required by the agreement, the giving of any required security, and payment by the parties of the expenses of the procedure authorized by this chapter and of the general costs of the partition or an appropriate share thereof. Thereafter the court, upon motion of a party to the agreement or of the referee, made upon not less than 10 days' notice to the parties who have appeared, shall determine whether the conditions have been fulfilled and, if so, shall enter judgment confirming the transfer; otherwise, upon such further proceedings as may be ordered, the action or proceeding shall be ordered terminated.

(Added by Stats. 1976, Ch. 73.)

The agreement binds the heirs, executors, administrators, successors, and assigns of the parties. In the event of default, the aggrieved parties may specifically enforce the agreement by further proceedings in the action or may pursue any other remedy they may have at law or in equity.

(Added by Stats. 1976, Ch. 73.)