Redwood City Partition Lawyers

Redwood City sits in the northern region of the San Francisco Peninsula and is quickly becoming known as the entertainment hub of the area. With such popularity, the influx of people is no surprise. Many Redwood residents purchase their homes jointly. According to Redfin, In April 2023, Redwood City home prices were down 11.3% compared to last year, selling for a median price of $1.8M. On average, homes in Redwood City sell after 19 days on the market compared to 9 days last year. There were 34 homes sold in April this year, down from 84 last year. However, when disagreements arise between co-owners who choose to take separate paths, the joint ownership of a shared property becomes a tether that needs breaking. Luckily, a Redwood Partition Lawyer can help severe the unity of possession with the legal remedy of partition. Redwood Partition Lawyers often find four broad categories where a partition is the best remedy:

  • Co-owned property one person wants to sell;
  • Partnership-owned property one partner wants to sell;
  • Boyfriend-Girlfriend owned property one person wants to sell; and
  • 50/50 owned property one partner wants to sell;
What is a Partition Action in California?

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.

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. The best Redwood City 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 Redwood City 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 Redwood City 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 Redwood City Partition Attorney will be intimately familiar with these matters.

A Partition Case Study: Nelson v. Riley (2020)

When a court gives an interlocutory judgment, they may order the type of partition that should occur. A court may order a partition by sale (CCP § 872.820) or in kind (CCP § 872.830). In a partition by sale, the property is sold. In a partition in kind, the property is physically divided so that each owner receives their interest in the property. The following paragraphs discuss how the court determines whether sanctions are appropriate when a party appeals from a court’s judgment ordering a form of partition contrary to the one they prefer in Nelson v. Riley (2020) 2020 WL 2060412.

In Nelson, Steven P. Nelson, Jr., and Shirley W. Nelson, as trustees of their own separate property trusts, filed a complaint against defendant John Riley II for the partition by sale of property jointly owned. According to the respondents’ brief, Riley and the Nelsons were equal one-third owners of 2.6 acres of undeveloped land in Alamo, California. Riley opposed the complaint on the sole ground that the court should not appoint a receiver to the property.

The trial court had entered an interlocutory order granting the Nelsons’ request to partition the property by sale. Riley appealed arguing that the trial court should have ordered a partition of kind. However, Riley failed to stay the partition order by filing an undertaking as under CCP § 917.4, and the property was sold while the appeal was pending.

California of Civil Procedure Code section 917.4 clarifies that an appeal does not stay enforcement of a judgement order, or an order that directs the sale, conveyance, or delivery of property unless an “undertaking in a sum fixed by the trial court is given that the appellant or party ordered to sell, convey, or deliver possession of the property will not commit or suffer to be committed any waste thereon.” Since Riley did not file the undertaking required by this section and did not appeal the trial court’s order approving the sale, the Nelsons filed a motion to dismiss the appeal as moot and requested sanctions.

The Court of Appeal for the First District asserts that “A case is moot when the decision of the reviewing court can have no practical impact or provide the parties effectual relief. City of Riverside v. Horspool, 167 Cal. Rptr. 3d 440, 452 (Cal. App. 4th Dist. 2014). Riley’s failure to post an undertaking and appeal the approval of the sale led the Court of Appeal to find the appeal moot as there was no relief that the court could grant.

The Court further states that sanctions can be found “…only when [the appeal] is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” In re Marriage of Flaherty, 646 P.2d 179, 187 (Cal. 1982). While the Court of Appeal agreed that the appeal was moot, it denied the Nelson’s request for sanctions.

Contrary to the Nelson’s argument that the appeal was brought for the purposes of delay, the Court of Appeal concurred with the trial court that Riley had the procedural right to file his lis pendens (his pending legal action) and he did not act without substantial justification. The Court of Appeal found that the record did not suggest that Riley sought to harass the Nelsons or delay an adverse judgment.

The Court of Appeal was also unpersuaded by the argument that the appeal was “totally and completely without merit” to the extent that sanctions were warranted. The Court contradicted this argument by reflecting on the fact that parties often argue on appeal that courts have abused their discretion by ordering one form of partition over another, and that the law generally favors partitions in kind. Richmond v. Dofflemyer, 164 Cal. Rptr. 727, 733 (Cal. App. 5th Dist. 1980). Riley’s supplemental response to interrogatories did agree that the Court had jurisdiction to adjudicate the matter and that partition by sale was the most equitable manner of dividing the property, but it also stated an alternative to sale was an agreed partition by appraisal. The Court declined to find that this response was a “clear and unequivocal admission of fact” that evidenced a total lack of merit and that Riley’s appeal “could not be credibly contradicted or amended.”

Therefore, the Court of Appeal found that Riley’s challenge did not rise to the level of justifying sanctions and denied the Nelson’s request. The appeal was dismissed, but the plaintiffs were able to recover their costs on appeal under Cal. Rules of Court, rule 8.278(a)(1), (5). Under 8.278(a)(1), a party that prevails on a civil case in the court of appeal, other than a juvenile case, is entitled to costs on appeal. Under 8.278(a)(5), the court of appeal may also award or deny costs as it deems proper, in the interest of justice.

A court may order a partition by sale or in kind based on what it believes to be more equitable for the parties (CCP § 872.820). Here, the Court of Appeal confirmed that a party may contest the interlocutory judgment that a partition be by sale, especially since partitions in kind tend to be favored, and should not be punished with sanctions for doing so, even if a party loses the argument. However, while sanctions may not be awarded, the prevailing party may be entitled to costs on appeal.

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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