San Leandro Partition Lawyers

San Leandro is a city in Alameda county, where the typical home value is approximately half of the median home value in San Francisco, and often individuals look to share the cost of purchasing real estate with other parties such as family members, friends or even investors, each being considered a co-owner of the property. According to San Leandro, In May 2023, San Leandro home prices were down 13.3% compared to last year, selling for a median price of $850K. On average, homes in San Leandro sell after 12 days on the market compared to 10 days last year. There were 39 homes sold in May this year, down from 55 last year. When there is a disagreement between co-owners, then a partition action might result. San Leandro Partition Attorneys usually find partition actions to be the best remedy for joint owners in disputes in four broad categories:

  • Parent-Child shared 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
  • Significant others shared tenants in common in real estate;
What is a Partition Action in California?

A partition lawsuit requires real estate to be sold regardless of the requests of the other title owners. The purpose of a partition action is to permanently end all disputes and remove all obstacles to the free enjoyment of land by one person. (McGillivray v. Evans (1864) 27 Cal.92.) These types of actions can be brought for all types of real estate from houses to farms to office buildings to apartment buildings. Similarly, partition actions are available all types of ownership situations from joint tenants to tenants-in-common to partnership property to property jointly owned by former spouses.

Historically, the term "partition" comes from the basic word to break into "parts" as in physically dividing real estate in half. For example, if two siblings inherited ten acres of farmland, the property could historically be divided into five acres a piece for each of them. As most people now live in single-family homes, which cannot simply be "split in half," courts will instead order that the property be sold and the proceeds, or equity, be "split in half." The best San Leandro Partition Lawyer will be able to share information on this process with you.

What are the Steps in a Partition Action?

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 San Leandro Partition lawyer will be familiar with the process.

Can You Recover Attorneys' Fees in a Partition Action?

Code of Civil Procedure, section 874.010 states that "[t]he costs of partition include: (a) [r]easonable attorney's fees incurred or paid by a party for the common benefit."

Interestingly, the costs of partition can also include reasonable expenses necessarily incurred by a party for the common benefit in prosecuting or defending other actions or proceedings for the protection, confirmation, or perfection of title, setting the boundaries, or making a survey of the property. (CCP § 874.020.)

That attorney's fees are considered "costs" associated with a partition action is important because Section 874.040 goes on to state 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." A knowledgeable San Leandro Partition Attorney will be able to give you good advice on these issues.

What are Claims for "Contribution"?

Code of Civil Procedure section 874.140 states that the "court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustments among the parties according to the principles of equity."

The court in Hunter v. Schultz (1966) 240 Cal.App.2d 24 stated that the payments for interest, taxes, and insurance made by any co-tenant could be subject to reimbursement. These claims for reimbursement are commonly known as "offsets" in a partition action.

Further, the court under Milian v. De Leon (1986) 181 Cal.App.3d 1185, announced that a co-tenant who expends money for the preservation of the property, or with the [acceptance] of their co-tenant(s), is entitled to reimbursement for those expenditures before the division of the proceeds among the property owners.

That is, the general rule is that compensatory adjustments are appropriate for improvements that enhance the value of the property for all owners' benefit. (see Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036.) An experienced San Leandro Partition Attorney will be intimately familiar with these matters.

A Partition Case Study: Hsu v. Duan

A partition is a division of real or personal property between co-owners, resulting in a physical division of the property or a forced sale with the proceeds split according to the interest held in the property. The right to partition depends on if the plaintiff owns a sufficient interest in the property. Generally, under California Code of Civil Procedure section 872.210, there are two categories of person's authorized to commence a partition action: (1) a co-owner of real property; and (2) any owner of an estate of inheritance or an estate for life or for years. A co-owner, also referred to as a cotenant, means one owner of property that is owned by multiple persons. While a co-owner is entitled to commence and maintain a partition action, the co-owner must show clear title to commence a partition action. (De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 124, 160 P.2d 574.) Hsu v. Duan (2002) 2002 WL 102927 discusses how title in a grant deed creates a presumption of ownership, but does not automatically prove ownership considering other evidence can be presented to refute the title stated in the grant deed.

In Hsu v. Duan, appellant Fred C.T. Hsu ("Hsu" hereinafter) filed a complaint for partition against his brother, respondent Ji Kai Duan ("Duan" hereinafter), claiming co-ownership of a residence in Newark, California, and desired to sell the property and divide the proceeds according to their respective interests. However, the trial court granted Duan's motion for nonsuit or judgment, stating that Hsu had no ownership interest in the property and therefore no right to seek partition. Hsu appealed this decision, but the First District Court of Appeal affirmed the trial court ruling.

Hsu alleged that his co-ownership interest was established by a grant deed executed by Duan, which transferred title to both of them. Hsu cited Code of Civil Procedure section1105, that states that a fee simple title, as in absolute ownership of a property, is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended. However, the First District Court of Appeal determined that a grant deed under section 1105 creates a rebuttable presumption of ownership interest, but does not establish ownership per se.

The Court of Appeal emphasized that a court can declare that a deed is a mortgage executed as security for a debt instead of a mechanism to transfer title so long as its supported by clear and convincing evidence citing Workmon Constr. Co. v. Weirick (1963) 223 Cal.App.2d 487, 493, evidence, meaning unwritten evidence, can be used to show that the deed did or did not convey property interests in fee simple. In this case, Duan argued that the parties never intended Hsu to be a co-owner but rather used the property as security for a loan. The trial court found that the overwhelming weight of the evidence supported this position. The Court of Appeal's inquiry was only to access if substantial evidence supported the trial court's findings that the grant deed did not indicate that Hsu was a co-owner of the property, thus did not have an absolute right to seek partition.

The Court of Appeal stated that the evidence presented showed that Hsu's interest in the property was that of a secured creditor, not an owner. Therefore, Hsu did not have a right to seek partition of the property regardless of his name being on the title in the grant deed. The existence of the grant deed was the only piece of evidence that could dispute that showing. Hsu testified that Duan approached him for help in purchasing a house, and Duan paid the full purchase price with the understanding that Hsu would repay him.

They obtained a loan using the property as collateral, and the loan funds were disbursed to Hsu. Duan thereafter made the loan payments. Upon Hsu's request, Duan executed the grant deed. Hsu's testified that his name was included on the title to protect his loan, and they agreed to remove his name once the debt was repaid. This evidence clearly demonstrated that the transaction was viewed as a loan, and Hsu's name on the deed did not signify ownership interest.

Considering the lack of ownership interest, the First District Court of Appeal upheld the trial court's ruling that Hsu had no right to seek partition of the property. The court also addressed Hsu's citation of Civil Code section 853, which presumes a trust in favor of a person who pays consideration for the transfer of real property. However, this presumption, like that of section 1105, is rebuttable, and the intent of the parties is the determining factor. Again, the evidence indicated that the parties did not intend for Hsu to have an ownership interest in the property, but was instead the deed was executed as security for a loan of money to Duan. Therefore, Civil Code section 853 did not create an interest subject to a partition action as well.

In conclusion, the First District Court of Appeal affirmed the trial court judgment, stating that Hsu lacked an ownership interest in the property and therefore had no right to seek partition. The evidence overwhelmingly supported the notion that the transaction was a loan, with the property serving as security, rather than a co-ownership arrangement.

How the Underwood Law Firm Can Help

Although a grant deed that transfers title creates a presumption of ownership, the presumption can be refuted with both written and nonwritten evidence. Ownership interest are determined by multiple factors such as deeds, agreements, and records of expenses paid. If you would like to initiate a partition action to sell a property, you must have an ownership interest in the property. If an there is a title dispute similar to that in Hsu v. Duan, you may need sound legal advice in order to properly file a partition action. Please contact Underwood Law Firm, P.C., for an initial consultation.

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