A California partition action happens when one co-owner of real property wants to sell but other co-owners do not want to sell their ownership rights. Partition means division. The opposing co-owners have the absolute right by law to divide the property and sell their portion with the legal remedy of “Partition”.
What is a Partition Action?
A partition action is a lawsuit that forces the sell of ownership in court.Whether it’s a building, home, or farm, anything attached to real property can be divided and sold by co-ownership in California. California legislation has a written Civil Code Procedure to follow when ownership is dissolved or changed.Real property and its rights go with the land. The real property includes easements, rents and debt or profits and all man-made things like fixtures, and fences. A buyer purchases the real estate and/or rights of ownership. This is also known as “bundle of rights.” The division of ownership can become complex and difficult.
It is important to make sure when you decide to dissolve or purchase real property with other co-owners that each owner fully understands what fraction/interest they actually own. It’s equally important to define what the property is used for profit or pleasure, maybe both. What was the purpose for property? Defining exact intent (farmed property) will save time and money if one of the owners decides to partition later.
Who Can File for a Partition?
The procedure for partition is statued. The California Law Civil Procedure Code section 872.210 states anyone who wants to dissolve ownership that is jointly owned with another person has a legal right to sell his/her interest if desired. Eligibility for Partitions are:
● Inheritance that is usually family members who inherit real and personal property.
● Divorce/mutual properties owned by spouses.
● Invested ownership partners with separate values of ownership in real and personal property. Partition by concurrent interest is when owners have the right to sell by law if they chose. It is an absolute right of ownership. There are exceptions to this rule:
1) waived the right to partition in writing/contract or
2) community property: owned by a married couple. This division can happen but takes place after a divorce in family court.
How to Avoid A Partition Lawsuit by Understanding the Types of
Ownership
Understanding the types of ownership that may lead to partition actions may help you to further avoid a lawsuit. Speak with our California real estate attorneys to stop the partition action before it happens.
● Joint Tenancy– Joint tenancy can be created only by the intention of the parties and exist when two or more persons are equally entitled to an undivided interest in a specific piece of real property to use, enjoy, and possess. Joint tenancy is a right of survivorship. Meaning upon the death of one joint tenant’s his/her rights and interest pass to the surviving tenant or tenants without the need of probate process. Remember this type of tenancies is created by intent and is clear to all owners/tenants.
● Tenancy in Common– Tenancy in common is created by an estate in land is held in land by two or more persons with no right to survivorship. Tenancy in common their share descends to his/her heirs.
● Tenancy by Entirety– Tenancy by entirety are only two persons in ownership/tenancy and are required to be married. Partition occurs as a result of divorce.
● Tenancy in Severalty– Tenancy in severalty is when one person owns the property. There is no co-ownership apart from others interest, severed.
California Partition Procedures Defined by Statute
A partition lawsuit asks the courts to force the division or sale of the property. There are three types of partition:
Partition in Kind:
This happens when the parties come together an agreement is achieved. They decide to divide their ownership rights fairly into separate individual pieces, a fraction of the property.
Partition by Appraisal:
The property is appraised and sold. They divide up the proceeds fairly. This would happen with a single family home being that you can’t split the home in half. If one of the owners wants to buy out the other, it can be done after property is appraised.
Partition by Judgement:
Interlocutory judgement leaves decisions to the judge.
The judge must determine elements before allowing the property to be partitioned.
1) Decide on each parties’ putative interest in the property and ordering partition; and
2) The type of partition in kind or sale of the property. Partition Action Lawsuit by Interlocutory Judgement (example of case law):
Summer vs. Superior Court of San Francisco.
Three co-owners had an investment property in San Francisco. One filed for a partition and at trial the judge granted her the right to privately sell the property. The motion was appealed by two other co-owners, (owners’ interest was not evaluated to be determined in the future). The appellate court reversed the lower court’s decision, (trial court). Why is this case important?
1) Hiring an attorney to create a business plan and help create a partnership/entity can save time and money. In the end, an attorney can make the dissolvement of real property partnership and co-ownership less of a burden. The above lawsuit started 2016 and ended 2018.
2) California procedures require the interest of each co-owner be established before a partition order can be given, as per Civil Code Procedure 872.720 (a).
At Stone & Sallus we offer a free consultation. Our attorneys are skilled and have great knowledge in these areas: business, real estate, and probate law in California. We understand the local and state laws that surround partitioning property. The attorneys at Stone & Sallus are ready to evaluate and maximize our experience for the best strategy to partition your property and achieve your litigation goals.
Best Method to Avoid a Partition
Mediation is a great tool that brings owners together to try and resolve the issues without occurring high legal fees. It is always best to try and reach out, if possible to avoid stress, time, and expense of a partition lawsuit. If the meeting of the mind fails consult a legal experienced attorney.
