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Co-Ownership Disputes® in California Real Estate

What is a partition action in california?

A partition action is a court ordered process to separate joint owners’ respective interests in real estate. California Code of Civil Procedure 872.240. It is the only court ordered remedy for co-owners who disagree on what to do with a property. A partition action will ensure sale or division of a property equitably among its co-owners. A partition is achievable no matter the size of your interest in the property, as well as whether your co-owner is belligerent, uncommunicative, or just doesn’t want to sell the property. In fact, California courts have unequivocally stated that the “right to partition is absolute.” Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.

How Does a Partition Action Work?

A partition action may be a last resort for many co-owners who have tried reasoning with their uncooperative co-owner(s). Once all options to reason with this person have been exhausted, a partition action is the only way to ensure an equitable division of jointly owned real estate. It is highly advisable to consult with a partition attorney to ensure that all documents are properly filed with the court. A partition attorney in California can help you organize important documents to proceed with the partition, including, but not limited to: the grant deed, trust deed, will, and any other documents the attorney may need to evaluate your situation.

A partition action officially begins when one co-owner files a complaint for a petition for partition with the court. After the petition has been filed, a lis pendens, or a notice of pendency of action, is recorded with the county recorder’s office. The lis pendens serves as constructive notice for anyone interested in the property that there is pending legal action affecting title to, or possession of, the property. The lis pendens will remain on the property until the partition is complete or the complaint is dropped. Assuming the partition suit continues forward, it will be presented to the court at which time the judge will make the final decision. A partition request that is upheld by the judge will result in the court appointing a partition referee. A partition referee is a neutral, third party whose job is to fairly divide the property or distribute the proceeds of the sale of the property.

How Long Does a Partition Action Take?

The length of time it takes to resolve a partition action varies greatly depending on the complexity of each case. Best case scenario, it is possible to reach a settlement agreement in as short as a few months. However, in a worst case scenario where the partition is hotly contested by other parties, it may take a year or two (rarely longer) for the partition action to be completed. An efficient and experienced partition attorney can help you achieve a resolution in your partition case in the most time-efficient manner possible.

Who Can File a Partition Action?

There are four distinct types of co-ownership in California: joint tenancy (with rights of survivorship), tenancy in common, partnership, and community property. Any real estate owned by joint tenants, tenants in common, or under a partnership is subject to partition law. Community property, however, is not. Property that has been purchased by spouses during the course of their marriage is community property, and therefore does not fall under the umbrella of partition law, unless it was already distributed to the former marital partners in the divorce. A family law attorney with experience in division of community property can assist in such scenarios.

A partition action is often filed by a property co-owner who wants to sell the property but his or her co-owners are unwilling to do so. Some common examples where filing a partition may be the best course of action are:

• A brother and sister inherit a California property from their parents. Each sibling is a joint tenant with 50% ownership in the home. The sister has been living in the home, but the brother lives across the country and gets no use out of this inherited property. The brother wants to sell the home but the sister refuses to cooperate. The brother files a partition action in California to force the sale of the house. He will then be able to collect his share (50%) of the proceeds from the sale of the home.
• A boyfriend and girlfriend buy a home together as tenants in common. After purchasing the home, the couple decides to break up. The boyfriend continues living in the home but the girlfriend moves out. However, the girlfriend paid the entire down payment and still makes all the mortgage payments. The girlfriend may file a petition for partition to force the sale of the home and obtain the value of her interest in the home. Additionally, she may be subject to equitable apportionment of payments she made toward the house.
• Three friends purchase a plot of land with the intent to build on it. One friend has a 50% interest in the land and the other two friends have 25% interests. Their plans to build on the land fall apart, and they can’t decide on what to do with the land. Any of the friends may petition for a partition, including a partition in kind. A partition in kind would allow each of the friends to become an owner of his/her proportion of the land. A partition in kind is rare due to the difficult nature of dividing the land equitably.

How Much Does a Partition Action Cost?

The cost of a partition action can vary widely depending on the complexity of the case. The average cost of a partition action in California is around $20,000. However, difficulty locating a defendant, motion and opposition to appointment of a partition referee, disagreement on property sale price, and other issues may raise the cost of your partition action. An experienced partition attorney can mitigate costs and resolve your co-ownership dispute with maximum efficiency.

Who Pays for a Partition Action?

In the United States, each party typically pays for their own attorney’s fees (known as the “American Rule”). However, California partition law allows for an exception to this rule, stating that “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.” California Code of Civil Procedure 874.040. Indeed, the court may award “reasonable attorney’s fees incurred or paid by a party for the common benefit.” California Code of Civil Procedure 874.010(a).

An experienced partition attorney understands how to keep attorney’s fees, and the overall cost of a partition action, reasonable for all parties involved.

The Attorneys at Partition Lawyer California

Scott Talkov is the Founder and Managing Partner at California Partition Lawyer. As a real estate litigator with over fourteen years of experience, he is passionate about helping co-owners find resolutions to their partition disputes and related issues. The attorneys at Partition Lawyer California have handled over 650 partition actions throughout the State of California. This wealth of knowledge allows our dedicated team of partition lawyers to deeply understand co-ownership disputes and related bankruptcy, business, family law, and trust & probate issues. At California Partition Lawyers, our attorneys are dedicated to ensuring that your joint ownership dispute is promptly resolved in the most fair and equitable manner for you.