South Bay Partition Lawyers

The South Bay in Los Angeles, is located in the southwest corner of Los Angeles County, California, and bounded by the Pacific Ocean on the south and west, and the City of Los Angeles on the east, and Los Angeles International Airport on the north. The South Bay includes the cities and unincorporated areas of of El Segundo, Manhattan Beach, Hermosa Beach, Redondo Beach, Torrance, Palos Verdes Estates, Rolling Hills, Rolling Hills Estates, Rancho Palos Verdes, Harbor City, Harbor Gateway, San Pedro, Wilmington, Hawthorne, Gardena, Lawndale, Lomita, Carson, Inglewood, Del Aire. Generally, South Bay Partition Lawyers find that a partition action is the best remedy for disputing co-owners in four broad categories:

  • Split ownership real estate dispute;
  • Brother-Sister real estate dispute;
  • Investor-Investor real estate dispute; and
  • Significant other real estate dispute
What Is a Partition Action in California?

A partition action is an action brought by a co-owner of a piece of real property against another co-owner, seeking to divide the property according to the respective interests of the co-owners. In order to establish a right to a partition, a party must show that they have some ownership interest in the subject property. Under Code of Civil Procedure section 872.210, any owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate is owned by several persons concurrently or in successive estates may bring a partition action. (CCP § 872.210.) Therefore, a co-tenant has an absolute right to partition. (Formosa Corp. v. Rogers (1951), 108 Cal.App.2d 397.) At the Underwood Law Firm, our attorneys are more than familiar with partition actions and the step-by-step process of pursuing a partition.

Generally, a partition action cannot be stopped absent a valid waiver. Virtually universally, the instances in which a court has found a valid waiver have involved some sort of written contract or adverse possession of property. As such, many parties try to stop a partition action through mediation, or a buy-out agreement. In most instances, the parties to a partition action can benefit from creative lawyering by those who are familiar with the different options for resolving real estate disputes. The best South Bay Partition Lawyer will be able to share information on this process with you.

What Are the Steps in a Partition Action?

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 South Bay Partition lawyer will be familiar with the process.

Can You Recover Your Attorneys’ Fees in a Partition Action?

An action for partition may include an accounting so that the respective rights of the parties can be adjusted and settled. (Lazzarevich v. Lazzarevich, (1952) 39 Cal. 2d 48, 50–51.) A cotenant who has advanced fund to pay common expenses is entitled to reimbursement from the sale proceeds before the balance is divided and distributed to the cotenants. (Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal. App. 2d 539, 541.) A cotenant out of possession can require the cotenant in possession to account for rents and profits or other compensatory adjustment in the division of sale proceeds. (CCP § 872.430.)

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 South Bay Partition Attorney will be able to give you good advice on these issues.

What Are Claims for “Contribution”?

Before the sales proceeds are distributed among the parties, a court-ordered accounting will determine the charges and credits upon each co-owner’s interest. These credits are taken out of the net proceeds before the balance is divided equally. (Southern Adjustment Bureau, Inc. v. Nelson(1964) 230 Cal.App.2d 539 (“Nelson”).) 

“When a cotenant makes advances from his own pocket to preserve the common estate, his investment in the property increases by the entire amount advanced. Upon sale of the estate, he is entitled to his reimbursement before the balance is equally divided.” (Nelson, 230 Cal.App.2d, at p. 541, citing William v. Koyer (1914) 168 Cal.369.)

As such, a party to a partition action must produce and gather their evidence and make sure that it is presented to the court so they can receive full credit for the value that they have added to the property. While a party may have a right to these credits under the law, ultimately, they will not be counted unless they can be presented in the proper form. An experienced South Bay Partition Attorney will be intimately familiar with these matters.

A Partition Case Study: Odening v. Evans

How may a party’s wrongful conduct or lack of cooperation affect a court’s decisions regarding apportionment of fees and costs in a partition action? The answer largely depends on the particular facts of the case in question. The following paragraphs discuss how such circumstances affected the court’s judgment in Odening v. Evans(2006) 2006 WL 711071.

In Odening, Campbell Odening and Debra Odening (“Plaintiffs” or “Respondents”) sued Roger Evans (“Defendant” or “Appellant”) for partition of real property located in Santa Monica, California (the “Property”). The Odenings and Evans had earlier purchased the Property, which included a four-unit apartment building. The Odenings jointly held a 50 percent undivided interest in the Property. Evans held the remaining 50 percent undivided interest in the Property.

Before escrow closed, the Odenings and Evans orally agreed that Evans would live in unit D. The Odenings would live in units A and B, which were one-bedroom units that the parties intended to convert to a single unit. Units A and B were equal in value to unit D. Unit C was to be a rental unit with the rent deposited into a joint checking account to pay for expenses. The Odenings and Evans agreed they would share equally in additional expenses.

Evans moved into unit D but because the tenant in unit B refused to leave the Property, the Odenings were unable to move into units A and B as planned.  The Odenings and Evans agreed Evans would contribute to the partnership an amount equal to the combined monthly rent collected from the tenants in units A and B and the parties would pay all costs associated with the Property from the rent paid by the tenants and Evans. They further agreed any net profits or losses after payment of all costs would be shared equally except for any amounts to be retained for future capital expenditures.

From May 1992 onward, the Odenings maintained the checkbook for the Property, collected rent, and paid the bills. Evans later took over the collection and accounting functions and acted as the on-site manager while Campbell Odening assisted with repairs. During the years 1996, 1999, and 2000, however, Evans was unable to attend to his managerial duties due to problems with depression and alcoholism. Consequently, the Odenings began managing the units and handling financial matters for the Property.

In 1996, the Odenings learned that Evans had separately rented unit A’s garage for $115 per month but had failed to inform them about the additional income. Although Evans had contributed amounts to the joint checking account roughly equal to the rent from units A and B until January 1996, after that date he had either missed payments or paid substantially less than the amount received for units A and B.

When Santa Monica lifted rent controls in 1999, the rent for unit B more than doubled. Despite the increase in unit B’s rent, Evans refused to contribute an amount equal to the rent received for units A and B and made only a few small payments to the joint checking account. In 2000, Evans stopped contributing to the joint checking account. In 2001, Evans began instructing tenants to pay all rents directly to him. Evans took control of and then denied the Odenings access to the Property’s bank accounts.

The Odenings filed an action against Evans in March 2001 for partition of the Property, an accounting and constructive trust, breach of contract, breach of fiduciary duty, and fraud. They alleged that Evans had failed to pay monthly rent for unit D in an amount equal to the rent received for units A and B; failed to deposit all rent received into the common account; failed to account for all income and expenses associated with the Property; converted funds received from tenants for his personal use; and failed to fulfill other responsibilities in connection with the Property.

The trial court bifurcated the equitable causes of action for partition and accounting and conducted a bench trial beginning on May 22, 2002. The trial court held that Evans had failed to honor his partnership obligations. The court ordered a partition of the Property by private sale between the parties and based on equity, granted the Odenings the first right to purchase the Property. The interlocutory judgment for partition was entered on August 5, 2002.

The trial court apportioned to Evans $24,231.50 of the Odenings’ attorney fees (50 percent) after finding that the Odenings expended $48,463.00 in total fees “for the common benefit.” The trial court also awarded to the Odenings 100 percent of their costs other than for attorney fees, which included $8,850 for expert witness fees, because Evans failed to file a motion to tax costs.

Evans’s lack of cooperation continued after entry of the interlocutory judgment for partition. Evans refused to turn over records pertaining to the Property’s finances following the trial. He only finally complied with demands for accounting information in December 2002. In 2003, after continued litigation, Evans appealed the interlocutory judgment for partition.

On appeal, the California Second District Court of Appeal rejected almost all of Evans’s arguments as without merit. First, the Court rejected Evans appeal of the interlocutory judgement. The Court reasoned that, because the interlocutory judgment was entered on August 5, 2002 and Evans did not file his notice of appeal until July 5, 2003, Evans’s appeal of the interlocutory judgment was not timely and must be dismissed. Additionally, the Court held that certain briefs Evans submitted were deficient and did not properly interpret legal authority.

The Court of Appeal also partially rejected Evans argument that trial court erred in the apportionment of the fees and costs of partition. Evans contended that the Odenings’ attorney fees that he was required to pay were not expended “for the common benefit” because the parties had hotly contested and diametrically opposed views regarding the proper distribution of the proceeds after partition.

The Court disagreed, reasoning that this argument had been rejected by the California Supreme Court. (Capuccio v. Caire (1932) 215 Cal. 518, 528-529 [“counsel fees may be allowed ... for services rendered for the common benefit even in contested partition suits”]; see also Regaldo v. Regaldo (1961) 198 Cal.App.2d 549, 551 [“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”].)

The Court of Appeal agreed with Evans on only one contention. The Court reversed the trial court’s award to the Odenings of 100 percent of their costs other than for attorney fees, including the $8,850 in expert witness fees. The Court held the trial court’s allocation to be an abuse of discretion contrary to apportionment based upon the parties’ ownership interests of 50 percent each (or some other equitable apportionment supported by the evidence as required by section 874.040). (See Finney v. Gomez, 111 Cal.App.4th 527, 548 [trial court abused its discretion when it deviated from apportionment of attorney fees and costs based upon ownership interest when there was no substantial basis for doing so].)

The Court of Appeal reversed the trial court’s judgment to the extent it failed to apportion expert witness fees and other costs and remanded the case for further proceedings not inconsistent with its opinion. The Court affirmed the trial court’s judgement in all other respects and ordered each party to bear his or her own costs on appeal.

How the Underwood Law Firm Can Help

As we’ve seen, in partition actions, a party’s wrongful conduct or lack of cooperation may result in a court deciding to grant the other party a first right of purchase. How the court apportions attorney fees and costs of expert witnesses, however, is likely to reflect the parties’ ownership interests and may remain unaffected by wrongful conduct or lack of cooperation.

As there are many different ways to waive the right of partition, and you are considering it as an option, then you may benefit from good legal advice on the topic. If you find yourself contemplating a partition action, or faced with defending one, then please contact Underwood Law Firm, P.C. for an initial consultation.

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