San Marcos Partition Lawyer

San Marcos, Spanish for "St. Mark" is a city in the North County region of San Diego County, California. German and Dutch immigrants began moving into the area in the early 1880s. In 1883, a few miles south of the settlement, John H. Barham (for whom the present-day Barham Drive is named) founded the first town in the area, originally situated on the southeast corner of what are now Rancho Santa Fe Road and San Marcos Boulevard. According to Redfin, in July 2023, San Marcos home prices were up 1.3% compared to last year, selling for a median price of $968K. On average, homes in San Marcos sell after 9 days on the market compared to 14 days last year. There were 44 homes sold in July this year, down from 60 last year. San Marcos residents who own real estate may face disputes with co-owners. There are at least four types of situations where a San Marcos Partition Attorney may be helpful:

• Investor-Developer co-ownership of property; 
• Ex Romantic Partner co-ownership of property; 
• Shared Family co-ownership of property; and
• Parent-Child co-ownership of property;

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 San Marcos Partition Lawyer will be able to share information on this process with you.

Generally, the first step in the partition lawsuit process is not a lawsuit, but an earnest attempt to resolve the matter informally, such as through a partition agreement. Only when it is clear that litigation is the only option, is it clear that a partition lawsuit is appropriate.

When it is clear that a partition lawsuit is necessary, then the process begins with the filing of a complaint in the county where the property is located. There are several technical requirements for the partition complaint, and many important steps that must be taken during the lawsuit to ensure that the process is managed effectively.

In a partition lawsuit, there are generally four different steps. First, the court determines each party's ownership interests. Second, the court will decide on the manner of sale. Third, the court will order the property be sold. Fourth, the proceeds from the sale will be divided between the parties based on their relative contributions to the property.

While some may believe that inherited property cannot be partitioned, this is incorrect. Instead, when the property is owned as the result of an inheritance, there may be an additional step for an appraisal, and a right of first refusal, as provided by the Uniform Partition of Heirs Act. Under this act, where a co-tenant requests partition by sale, the law gives the non-partition owner the option to buy all of the interests of the co-tenants who requested the sale. A top San Marcos Partition lawyer will be familiar with the process.

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." A knowledgeable San Marcos Partition Attorney will be able to give you good advice on these issues.

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 Marcos Partition Attorney will be intimately familiar with these matters.

After a partitioned property is sold, a court may vacate the sale and direct a new one if it believes the proceedings were unfair or notice of the sale was not properly given, the sale price is disproportionate to the value of the property, or it appears that a new sale will yield a sum that exceed the sale price by at least 10 percent. (CCP § 873.730). The following paragraphs discuss how the Court of Appeal determines whether a trial court abused its discretion when it refused to vacate a sale and replace a referee in Aguilera v. Lyons (2015) 2015 WL 5839779.

In Aguilera, Alfredo M. Aguilera and Alicia M. Aguilera filed a complaint for partition and quiet title in April 2001. They claimed that the owned an 88/144 share of unimproved property and the defendants owed the rest in varying shares. The property was bisected by a county road and bared two assessor parcel numbers.

After a bench trial in June 2003, the court on August 21, 2003 issued an interlocutory judgment determining that plaintiffs were entitled to partition the property and that it was necessary for the court to appoint a referee to investigate and determine the possibility and economic feasibility of a division of the property, either by court order or otherwise, in which the plaintiffs could be awarded a portion of the property with the remainder sold and distributed amongst the defendants.

The trial court appointed a referee and retained jurisdiction over the terms and manner of any sale and disposition of the property. The initial plan was to subdivide and sell the property with the plaintiffs undertaking the cost of subdivision. However, the plaintiffs abandoned their subdivision efforts because of the costs and difficulties associated with doing so. In February 2011, the plaintiff sent their attorney a letter directing him and the referee to stop all the work on the division and/or sale of the property.

On March 3, 2011, the lawyer sent the plaintiffs an email in which he indicated that there had been additional discussion between the plaintiffs and him about the prospect of selling the property and that payment of his fees and the referee’s would be deferred until after the sale. So, the lawyer asked the plaintiffs to let him know how they would like him to proceed. The plaintiff replied that they would authorize the effort to sell the property, but that the sale would be contingent on them agreeing to the sale price and the terms of the sale. The lawyer informed the plaintiffs that the confirmation of the sale would be up to the court, not them.

The plaintiffs inquired if they could stop the whole proceeding until the market recovered but the lawyer advised against it noting that with judgment being entered, he doubted whether a dismissal was even an option and they had already spent a considerable about of money just finding and serving everyone with an ownership interest. Despite communications that the sale was moving forward, Mrs. Aguilera claimed in a declaration that the lawyer secretly proceeded to obtain the trial court’s order to sell the property after they had asked him to stop.

In April 2011, the lawyer coped the plaintiffs on his email correspondence with the defendants about an amended judgment to change from subdivision to sale of the entire property as one parcel. In May 2011, the trial court issued an amended interlocutory judgment which directed the referee wot proceed with partition by sale of the entire property rather than partly by division and partly by sale. This judgment was signed by Judge Hilde and determined that a private sale rather than a public auction would be more beneficial.

On January 20, 2012, the plaintiffs on their own sent an ex parte letter to Judge Hilde stating that they wanted to halt all proceedings concerning the sale of their property. In an email dated January 25, 2012, the lawyer told the plaintiff that the referee was going to accept an offer which was $465,000 in cash.

On March 12, 2012, the plaintiffs filed a substitution attorney, replacing their lawyer, with another. On April 9, 2012, the plaintiffs filed an ex parte application for an extension of time to serve opposition to the motion to confirm the sale and to file motions to terminate the sale and replace the referee. At the hearing on the ex parte application on April 10, 2012, Judge Hilde noted she had decided to recuse herself from any proceedings in which the attorney’s credibility would be an issue as she considered him a friend.

The following day the trial court filed a minute order signed by Judge Hilde stating that an interlocutory judgment had been filed April 21, 2003, and the court thereby vacated the request for dismissal of the entire action on April 10, 2012.

The plaintiffs then filed a motion to set aside the sale on multiple grounds. The defendants filed an opposition to plaintiffs’ motion stating that the plaintiffs had failed to establish grounds to vacate the sale. On April 17, 2012, the referee submitted an ex parte application asking for court authority to hire an attorney, and Judge Hilde signed the ex parte order granting authority on the same day. On April 18, 2012, the referee filed an opposition to the plaintiffs’ motion to set aside the sale. On April 19, 2012, visiting Judge Kelly denied to application for a extension of time and the plaintiffs filed a motion to replace the referee.

On April 23 and 24, 2012, a hearing was held before a visiting judge which by stipulation of all the parties covered not only the referee’s motion to confirm the sale but also the plaintiffs’ motions to remove the referee and set aside the sale. The trial court denied the motion to replace the referee and set aside the sale and granted the referee’s motion to confirm the sale. The plaintiffs filed a notice of appeal and on May 4, 2012 filed a motion for a new trial.

On June 12, 2012, after a hearing, the trial court denied the motion for a new trial and the motion for section 473 relief. The plaintiffs appealed. The four matters that the plaintiffs appealed were: (1) the April 11, 2012, order signed by Judge Hilde, vacating plaintiff’s unilateral dismissal of the lawsuit; (2) the April 24, 2012, order confirming the sale; (3) the April 24, 2012 order denying the motion to remove the referee; and (4) the June 12, 2012, orders denying the motion for a new trial and “related relief” under section 473. The defendants filed a motion for sanction for a frivolous appeal and the referee filed a joiner supporting an award for sanctions.

The Court of Appeal for the Third District addressed each contention one by one. The Plaintiffs argued that Judge Hilde’s order vacating their dismissal was void because she had recused herself. To this the Court of Appeal noted that a disqualified judge may take any action or issue an order necessary to maintain the jurisdiction of the court pending the assignment of a judge. Additionally, even if the order was not authorized, the plaintiffs had forfeited the issue by not objecting in the trial court at the time when the matter could have easily been corrected by a different judge.

The plaintiffs also contended that that the referee was precluded from employing an attorney who was representing a party to the action under CCP § 873.120. While the plaintiffs were correct, they failed to show prejudice as a result. Additionally, the arguments seeking to reverse the trial court’s orders confirming the sale lacked merit. Any of the reasons that a court may vacate a sale under 873.730 were not addressed by the plaintiffs.

The final argument that the plaintiffs attempted to make was that the trial court’s order denying their section 473 motion for relief from excusable neglect. However, the Court of Appeal points out that the trial court had no jurisdiction over the first section 473 motion and therefore the plaintiffs could not show any prejudice in the trial court’s order. Additionally, the plaintiffs had failed to show any basis for such relief.

While the Court of Appeal did not find in favor of the plaintiffs, they did not find that the appeal was totally and completely without merit as there was irregularities in variance with statutory procedures, so the motion for sanctions was denied. Therefore, the Court of Appeal affirmed the trial courts orders.

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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