Partition Statutes - 3

The provisions of this chapter are cumulative and if, for default or other cause, interests are not transferred and acquired pursuant to this chapter, the parties may pursue their other rights of partition, subject to Section 873.970.

The costs of partition include:

• Reasonable attorney's fees incurred or paid by a party for the common benefit.
• The fee and expenses of the referee.
• The compensation provided by contract for services of a surveyor or other person employed by the referee in the action.
• The reasonable costs of a title report procured pursuant to Section 872.220 with interest thereon at the legal rate from the time of payment or, if paid before commencement of the action, from the time of commencement of the action.
• Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit.

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

The costs of partition include reasonable expenses, including attorney's fees, necessarily incurred by a party for the common benefit in prosecuting or defending other actions or other proceedings for the protection, confirmation, or perfection of title, setting the boundaries, or making a survey of the property, with interest thereon at the legal rate from the time of making the expenditures.

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

Where disbursements have been made by a party under the direction of the court, interest at the legal rate shall be allowed thereon from the time of making such disbursements.

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

Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.

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

• The court may order that the share of the costs apportioned to a future interest be paid by other parties to the action or by the persons who are then the presumptive owners of the future interest.
• Where the court orders payment pursuant to this section, such payment is subject to a right of reimbursement, with interest at the legal rate, secured by a charge upon the future interest.

• The costs of partition as apportioned by the court may be ordered paid in whole or in part prior to judgment.
• Any costs that remain unpaid shall be included and specified in the judgment.

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

• The costs shall be a lien on the share of the party specified.
• A lien imposed by this section has priority over any other lien on the share except those imposed under this section.

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

Upon application of a person entitled to a lien imposed under this article and upon a showing of good cause, the court may order a sale of all or a portion of the property before or after judgment for the benefit of all such lien claimants without priority among them.

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

A judgment for unpaid costs of partition may be enforced by the person entitled to the costs in the manner provided for enforcement of money judgments generally against the share of the party specified in the judgment or against other property of the party.

The judgment in the action is binding and conclusive on all of the following:

• All persons known and unknown who were parties to the action and who have or claim any interest in the property, whether present or future, vested or contingent, legal or beneficial, several or undivided.
• All persons not in being or not ascertainable at the time the judgment is entered who have any remainder interest in the property, or any part thereof, after the determination of a particular estate therein and who by any contingency may be entitled to a beneficial interest in the property, provided the judge shall make appropriate provision for the protection of such interests.
• Except as provided in Section 874.225, all persons who were not parties to the action and who have or claim any interest in the property which was not of record at the time the lis pendens was filed, or if none was filed, at the time the judgment was recorded.

(Amended by Stats. 1984, Ch. 20, Sec. 5.)

Except to the extent provided in Section 1908, the judgment does not affect a claim in the property or part thereof of any person who was not a party to the action if any of the following conditions is satisfied:

• The claim was of record at the time the lis pendens was filed or, if none was filed, at the time the judgment was recorded.
• The claim was actually known to the plaintiff or would have been reasonably apparent from an inspection of the property at the time the lis pendens was filed or, if none was filed, at the time the judgment was entered. For the purpose of this subdivision, a "claim in the property or part thereof" of any person means the interest of the person in the portion of the property or proceeds of sale thereof allocated to the plaintiff. Nothing in this subdivision shall be construed to impair the rights of a bona fide purchaser or encumbrancer for value dealing with the plaintiff or the plaintiff's successors in interest.

(Added by Stats. 1984, Ch. 20, Sec. 7.)

A conveyance or transfer pursuant to Sections 873.750 and 873.790 or Section 873.960 is binding and conclusive, in the same manner as a judgment.

This act shall be known, and may be cited, as the Uniform Partition of Heirs Property Act.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

For purposes of this chapter, the following definitions apply:

• "Ascendant" means an individual who precedes another individual in lineage, in the direct line of ascent from the other individual.
• "Collateral" means an individual who is related to another individual under the law of intestate succession of this state but who is not the other individual's ascendant or descendant.
• "Descendant" means an individual who follows another individual in lineage, in the direct line of descent from the other individual.
• "Determination of value" means a court order determining the fair market value of heirs property under Section 874.316 or 874.320 or adopting the valuation of the property agreed to by all cotenants.
• "Heirs property" means real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action:
  1. There is no agreement in a record binding all the cotenants which governs the partition of the property.
  2. One or more of the cotenants acquired title from a relative, whether living or deceased.
  3. Any of the following applies:
     • Twenty percent or more of the interests are held by cotenants who are relatives.
     • Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased.
• Twenty percent or more of the cotenants are relatives.
• "Partition by sale" means a court-ordered sale of the entire heirs property, whether by auction, sealed bids, or open-market sale conducted under Section 874.320.
• "Partition in kind" means the division of heirs property into physically distinct and separately titled parcels.
• "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
• "Relative" means an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or state law other than this chapter.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

• This act applies to partition actions filed on or after January 1, 2022.
• In an action to partition real property under this title, the court shall determine whether the property is heirs property. If the court determines that the property is heirs property, the property shall be partitioned under this chapter unless all of the cotenants otherwise agree in a record.
• This chapter supplements the other provisions of this title and, if an action is governed by this chapter, this chapter shall control over any provisions of this title that are inconsistent with this chapter.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

• This act does not limit or affect the method by which service of a complaint in a partition action may be made.
• If the plaintiff in a partition action seeks an order of notice by publication and the court determines that the property may be heirs property, the plaintiff, not later than 10 days after the court's determination, shall post and maintain while the action is pending a conspicuous sign on the property that is the subject of the action. The sign shall state that the action has commenced and identify the name and address of the court and the common designation by which the property is known. The court may require the plaintiff to publish on the sign the name of the plaintiff and the known defendants.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

If the court appoints referees pursuant to Section 873.010, each referee, in addition to any other requirements and disqualifications applicable to referees, shall be disinterested and impartial and not a party to or a participant in the action.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

• Except as otherwise provided in subdivisions (b) and (c), if the court determines that the property that is the subject of a partition action is heirs property, the court shall determine the fair market value of the property by ordering an appraisal pursuant to subdivision (d).
• If all cotenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation.
• If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.
• If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in this state to determine the fair market value of the property assuming sole ownership of the fee simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.
• If an appraisal is conducted pursuant to subdivision (d), not later than 10 days after the appraisal is filed, the court shall send notice to each party with a known address, stating all of the following:
  1. The appraised fair market value of the property.
  2. That the appraisal is available at the court clerk's office.
  3. That a party may file with the court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.
• If an appraisal is filed with the court pursuant to subdivision (d), the court shall conduct a hearing to determine the fair market value of the property not sooner than 30 days after a copy of the notice of the appraisal is sent to each party under subdivision (e), whether or not an objection to the appraisal is filed under paragraph (3) of subdivision (e). In addition to the court-ordered appraisal, the court may consider any other evidence of value offered by a party.
• After a hearing under subdivision (f), but before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

• If any cotenant requested partition by sale, the court shall, after the determination of value under Section 874.316, send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.
• Not later than 45 days after the notice is sent under subdivision (a), any cotenant except a cotenant that requested partition by sale may give notice to the court that it elects to buy all the interests of the cotenants that requested partition by sale.
• The purchase price for each of the interests of a cotenant that requested partition by sale is the value of the entire parcel determined under Section 874.316 multiplied by the cotenant's fractional ownership of the entire parcel.
• After expiration of the period described in subdivision (b), the following rules apply:
  1. If only one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall notify all the parties of that fact.
  2. If more than one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant's existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant.
  3. If no cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall send notice to all the parties of that fact and resolve the partition action under paragraphs (a) and (b) of Section 874.318.
• If the court sends notice to the parties under paragraph (1) or (2) of subdivision (d), the court shall set a date, not sooner than 60 days after the date the notice was sent, by which electing cotenants shall pay their apportioned price into the court. After this date, the following rules apply:
  1. If all electing cotenants timely pay their apportioned price into court, the court shall issue an order reallocating all the interests of the cotenants and disburse the amounts held by the court to the persons entitled to them.
  2. If no electing cotenant timely pays its apportioned price, the court shall resolve the partition action under paragraphs (a) and (b) of Section 874.318 as if the interests of the cotenants that requested partition by sale were not purchased.
  3. If one or more but not all of the electing cotenants fail to pay their apportioned price on time, the court, on motion, shall give notice to the electing cotenants that paid their apportioned price of the interest remaining and the price for all that interest.
• Not later than 20 days after the court gives notice pursuant to paragraph (3) of subdivision (e), any cotenant that paid may elect to purchase all of the remaining interest by paying the entire price into the court. After the 20-day period, the following rules apply:
  1. If only one cotenant pays the entire price for the remaining interest, the court shall issue an order reallocating the remaining interest to that cotenant. The court shall promptly issue an order reallocating the interests of all of the cotenants and disburse the amounts held by it to the persons entitled to them.
  2. If no cotenant pays the entire price for the remaining interest, the court shall resolve the partition action under paragraphs (a) and (b) of Section 874.318 as if the interests of the cotenants that requested partition by sale were not purchased.
  3. If more than one cotenant pays the entire price for the remaining interest, the court shall reapportion the remaining interest among those paying cotenants, based on each paying cotenant's original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interest. The court shall issue promptly an order reallocating all of the cotenants' interests, disburse the amounts held by it to the persons entitled to them, and promptly refund any excess payment held by the court.
• Not later than 45 days after the court sends notice to the parties pursuant to subdivision (a), any cotenant entitled to buy an interest under this section may request the court to authorize the sale as part of the pending action of the interests of cotenants named as defendants and served with the complaint but that did not appear in the action.
• If the court receives a timely request under subdivision (g), the court, after a hearing, may deny the request or authorize the requested additional sale on such terms as the court determines are fair and reasonable, subject to the following limitations:
  1. A sale authorized under this subdivision may occur only after the purchase prices for all interests subject to sale under subdivisions (a) to (f), inclusive, have been paid into court and those interests have been reallocated among the cotenants as provided in those subdivisions.
  2. The purchase price for the interest of a nonappearing cotenant is based on the court's determination of value under Section 874.316.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

• If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to Section 874.317, or if after conclusion of the buyout under Section 874.317 a cotenant remains that has requested partition in kind, the court shall order partition in kind unless the court, after consideration of the factors listed in Section 874.319, finds that partition in kind will result in great prejudice to the cotenants as a group. In considering whether to order partition in kind, the court shall approve a request by two or more parties to have their individual interests aggregated.
• If the court does not order partition in kind under subdivision (a), the court shall order partition by sale pursuant to Section 874.320 or, if no cotenant requested partition by sale, the court shall dismiss the action.
• If the court orders partition in kind pursuant to subdivision (a), the court may require that one or more cotenants pay one or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held.
• If the court orders partition in kind, the court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out, a part of the property representing the combined interests of these cotenants as determined by the court.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

• In determining whether partition in kind would result in great prejudice to the cotenants as a group, the court shall consider the following:
  1. Whether the heirs property practicably can be divided among the cotenants.
  2. Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur.
  3. Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other.
  4. A cotenant's sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant.
  5. The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property.
  6. The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property.
  7. Any other relevant factor.
• The court shall not consider any one factor in subdivision (a) to be dispositive without weighing the totality of all relevant factors and circumstances.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

• If the court orders a sale of heirs property, the sale shall be an open-market sale unless the court finds that a sale by sealed bids or an auction would be more economically advantageous and in the best interest of the cotenants as a group.
• If the court orders an open-market sale and the parties, not later than 10 days after the entry of the order, agree on a real estate broker licensed in the State of California to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties do not agree on a broker, the court shall appoint a disinterested real estate broker licensed in the State of California to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the determination of value and on the terms and conditions established by the court.
• If the broker appointed under subdivision (b) obtains within a reasonable time an offer to purchase the property for at least the determination of value, the following requirements apply:
  1. The broker shall comply with the reporting requirements in Section 874.321.
  2. The sale shall be completed in accordance with state law.
• If the broker appointed under subdivision (b) does not obtain an offer to purchase the property for at least the determination of value within a reasonable time, the court, after a hearing, may do any of the following:
  1. Approve the highest outstanding offer, if any.
  2. Redetermine the value of the property and order that the property continue to be offered for an additional time.
  3. Order that the property be sold by sealed bids or at an auction.
• If the court orders a sale by sealed bids or an auction, the court shall set terms and conditions of the sale. If the court orders an auction, the auction shall be conducted under Chapter 6 (commencing with Section 873.510).
• If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

• A broker appointed to offer heirs property for open-market sale shall file a report with the court not later than seven days after receiving an offer to purchase the property for at least the value determined under Section 874.316 or 874.320.
• The report required by subdivision (a) shall contain the following information:
  1. A description of the property to be sold to each buyer.
  2. The name of each buyer.
  3. The proposed purchase price.
  4. The terms and conditions of the proposed sale, including the terms of any owner financing.
  5. The amounts to be paid to lienholders.
  6. A statement of contractual or other arrangements or conditions of the broker's commission.
  7. Other material facts relevant to the sale.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

In an action for partition of heirs property, the court may apportion the costs of partition, including an appraisal fee, pursuant to Section 874.040, except that the court shall not apportion the costs of partition to any party that opposes the partition unless doing so is equitable and consistent with the purposes of this chapter.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(Added by Stats. 2021, Ch. 119, Sec. 2. (AB 633) Effective January 1, 2022.)

This act modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act (15 U.S.C. Sec. 7001 et seq.), but does not modify, limit, or supersede Section 101(c) of that act (15 U.S.C. Section 7001(c)), or authorize electronic delivery of any of the notices described in Section 103(b) of that act (15 U.S.C. Section 7003(b)).