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Chapter 7 and Chapter 13 Partition Action Law Firm

A partition action is a lawsuit that allows a co-owner of a property to force the sale of a jointly owned property and divides the proceeds.

When two or more owners of a property do not agree on the disposition of the property any of the owners has the right to file a partition action in court, usually with a partition lawyer.

Our partition lawyer can assist you with the pre-lawsuit demands to sell the property, filing of the partition lawsuit, and litigated it to judgment.  We can also help you defend your rights and seek reimbursements for fees that you’ve incurred while you co-owned the property with another person.

The fees for a partition lawsuit can either be hourly, a contingency, or some other form of a hybrid partition retainer.  Please contact our firm today to discuss your particular partition case and fee structures that are available for your situation.

Partition lawsuits are generally governed by Code of Civil Procedure section 872.010 et. seq, though other Rules of a civil Procedure, Cal. Rules of Court, and Evidence Code sections also come into play.

Here are the general provisions for a partition action:

872.010.

  As used in this title:(a) “Action” means an action for partition under this title.

(b) “Lien” means a mortgage, deed of trust, or other security interest in property whether arising from contract, statute, common law, or equity.

(c) “Property” includes real and personal property.

(d) “Remainder” includes reversion, reversionary interest, right of entry, and executory interest.

(e) “Title report” includes a preliminary report, guarantee, binder, or policy of title insurance.

872.020.

This title governs actions for partition of real property and, except to the extent not applicable, actions for partition of personal property.

872.030.

 The statutes and rules governing practice in civil actions generally apply to actions under this title except where they are inconsistent with the provisions of this title.872.040.

Nothing in this title excuses compliance with any applicable laws, regulations, or ordinances governing the division, sale, or transfer of property.


– The general powers of the Court in a Partition Action in California:

 872.110.

 (a) The superior court has jurisdiction of actions under this title.(b) Subject to the power of the court to transfer actions, the proper county for the trial of actions under this title is:

(1) Where the subject of the action is real property or real and personal property, the county in which the real property, or some part thereof, is situated.

(2) Where the subject of the action is personal property, the county in which the personal property is principally located at the commencement of the action or in which the defendants, or any of them, reside at the commencement of the action.

872.120.

 In the conduct of the action, the court may hear and determine all motions, reports, and accounts and may make any decrees and orders necessary or incidental to carrying out the purposes of this title and to effectuating its decrees and orders.872.130.

In the conduct of the action, the court may issue temporary restraining orders and injunctions, with or without bond, for the purpose of:(a) Preventing waste.

(b) Protecting the property or title thereto.

(c) Restraining unlawful interference with a partition of the property ordered by the court.

872.140.

 The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.


– How to Commence a Partition Action

872.210.

(a) A partition action may be commenced and maintained by any of the following persons:

(1) A coowner of personal property.

(2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.

(b) Notwithstanding subdivision (a), an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.

872.310.  The Summons

(a) The form, content, and manner of service of summons shall be as in civil actions generally.

(b) Service on persons named as parties pursuant to Sections 872.530(b) and 872.550, and on other persons named as unknown defendants, shall be by publication pursuant to Section 415.50 and the provisions of this article.

872.320

Where the court orders service by publication, such order shall be subject to the following conditions:

(a) The plaintiff shall post, not later than 10 days after the date the order is made, a copy of the summons and complaint on the real property that is the subject of the action.

(b) The plaintiff shall record, if not already recorded, a notice of the pendency of the action.

(c) The publication shall describe the property that is the subject of the action. In addition to particularly describing the property, the publication shall describe the property by giving its street address, if any, or other common designation, if any; but, if a legal description of the property is given, the validity of the publication shall not be affected by the fact that the street address or other common designation recited is erroneous or that the street address or other common designation is omitted.

872.330.

(a) Where the court orders service by publication, the publication may:

(1) Name only the defendants to be served thereby.

(2) Describe only the property in which the defendants to be served thereby have or claim interests.

(b) Judgment based on failure to appear and answer following service under this section shall be conclusive against the defendants named in respect only to property described in the publication.

– The response to a partition case is typically called and an Answer, which has the following requirements:

872.410.

The answer shall set forth:

(a) Any interest the defendant has or claims in the property.

(b) Any facts tending to controvert such material allegations of the complaint as the defendant does not wish to be taken as true.

(c) Where the defendant seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.

872.420.

  Where the defendant has or claims a lien on the property, the answer shall set forth the date and character of the lien and the amount remaining due thereon.

– The Parties for a Partition lawsuit are:

872.510.

The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.

872.520.

(a) If the name of a person described in Section 872.510 is not known to the plaintiff, the plaintiff shall so state in the complaint and shall name as parties all persons unknown in the manner provided in Section 872.550.

(b) If the ownership or the share or quantity of the interest of a person described in Section 872.510 is unknown, uncertain, or contingent, the plaintiff shall so state in the complaint. If the lack of knowledge, uncertainty, or contingency is caused by a transfer to an unborn or unascertained beneficiary or class member, or by a transfer in the form of a contingent remainder, vested remainder subject to defeasance, executory interest, or similar disposition, the plaintiff shall also state in the complaint, so far as is known to the plaintiff, the name, age, and legal disability (if any) of the person in being who would be entitled to ownership of the interest had the contingency upon which the right of such person depends occurred prior to the commencement of the action.

(c) The court shall upon its own motion or upon motion of any party make such orders for joinder of additional parties and for appointment of guardians ad litem pursuant to Sections 372, 373, and 373.5 as are necessary or proper.

872.530.

(a) If a person described in Section 872.510 is dead and the plaintiff knows of a personal representative, the plaintiff shall join such personal representative as a defendant.

(b) If a person described in Section 872.510 is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative:

(1) The plaintiff shall state these facts in an affidavit filed with the complaint.

(2) Where it is stated in the affidavit that such person is dead, the plaintiff may join as defendants “the testate and intestate successors of ____ (naming such deceased person), deceased, and all persons claiming by, through, or under said decedent,” naming them in that manner.

(3) Where it is stated in the affidavit that such person is believed to be dead, the plaintiff may join such person as a defendant, and he may also join “the testate and intestate successors of ____ (naming such person) believed to be deceased, and all persons claiming by, through, or under such person,” naming them in that manner.

872.540.

Where property is subject to a lease, community lease, unit agreement, or other pooling arrangement with respect to oil or gas or both, the plaintiff need not join as defendants persons whose only interest in the property is that of a lessee, royalty-owner, lessor-owner of other real property in the community, unit, or pooled area, or working interest owner, or persons claiming under them, and the judgment shall not affect the interests of such persons not joined as defendants.

872.550.

Where partition is sought as to all interests in the property, the plaintiff may join as defendants “all persons unknown claiming any interest in the property,” naming them in that manner.

– Partition trials Determine the Interests of the Parties:

The interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.

872.620.

To the extent necessary to grant the relief sought or other appropriate relief, the court shall upon adequate proof ascertain the state of the title to the property.

872.630.

(a) To the extent necessary to grant the relief sought or other appropriate relief, the court shall determine the status and priority of all liens upon the property.

(b) The court may appoint a referee to ascertain the facts necessary for the determination required by this section. Upon application of the referee or a lienholder, the court shall direct the issuance of process to compel attendance of witnesses, the production of books, documents, or things, and the filing of verified claims. The report of the referee thereon shall be made in writing to the court and shall be confirmed, modified, or set aside and a new reference ordered, as the justice of the case may require.

872.640.

Where two or more parties are unknown, the court may consider their interests together in the action and not as between each other.

– The court Determines the Partition Interests

872.710.

(a) At the trial, the court shall determine whether the plaintiff has the right to partition.

(b) Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.

(c) Partition as to successive estates in the property shall be allowed if it is in the best interest of all the parties. The court shall consider whether the possessory interest has become unduly burdensome by reason of taxes or other charges, expense of ordinary or extraordinary repairs, character of the property and change in the character of the property since creation of the estates, circumstances under which the estates were created and change in the circumstances since creation of the estates, and all other factors that would be considered by a court of equity having in mind the intent of the creator of the successive estates and the interests and needs of the successive owners.

872.720.

(a) If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.

(b) If the court determines that it is impracticable or highly inconvenient to make a single interlocutory judgment that determines, in the first instance, the interests of all the parties in the property, the court may first ascertain the interests of the original concurrent or successive owners and thereupon make an interlocutory judgment as if such persons were the sole parties in interest and the only parties to the action. Thereafter, the court may proceed in like manner as between the original concurrent or successive owners and the parties claiming under them or may allow the interests to remain without further partition if the parties so desire.

872.730.

To the extent that the court determines that the provisions of this title are a suitable remedy, such provisions may be applied in a proceeding for partnership accounting and dissolution, or in an action for partition of partnership property, where the rights of unsecured creditors of the partnership will not be prejudiced.

– The Court Determines the Manner of Partition

872.810.

The court shall order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment.

872.820.

Notwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment in the following situations:

(a) The parties agree to such relief, by their pleadings or otherwise.

(b) The court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property. For the purpose of making the determination, the court may appoint a referee and take into account his report.

872.830.

If, in making a determination whether sale would be more equitable than division of the property, the court finds that sale and division of proceeds for part of the property would be more equitable than division of the whole property, the court may order that such part be sold and the remainder divided.

872.840.

(a) Where the property or an interest therein is subject to an express trust, the court may, in its discretion, order that the property be sold.

(b) Upon division or sale of such property, the property or proceeds of sale allotted to the trustee of the express trust shall be held by him upon the trust therein stated, and no further action by the court pursuant to Section 873.840 is required.

– Partition referees

873.010.

(a) The court shall appoint a referee to divide or sell the property as ordered by the court.

(b) The court may:

(1) Determine whether a referee’s bond is necessary and fix the amount of the bond.

(2) Instruct the referee.

(3) Fix the reasonable compensation for the services of the referee and provide for payment of the referee’s reasonable expenses.

(4) Provide for the date of commencement of the lien of the referee allowed by law.

(5) Require the filing of interim or final accounts of the referee, settle the accounts of the referee, and discharge the referee.

(6) Remove the referee.

(7) Appoint a new referee.

873.020.

The court in its discretion may appoint a referee for sale and a referee for division, or may appoint a single referee for both.

873.030.

(a) The court may, with the consent of the parties, appoint three referees to divide or sell the property as ordered by the court.

(b) The three referees so appointed shall have all the powers and may perform all the duties required of one referee.

873.040

(a) The court shall appoint as referee under this title any person or persons to whose appointment all parties have consented.

(b) In the case of a minor party or a party for whom a conservator of the estate has been appointed, the guardian or conservator of the estate of the party may so consent.

873.050.

None of the following persons shall be appointed a referee under this title:

(a) A clerk or deputy clerk of the court.

(b) A former or present partner or employee of the judge.

(c) A relative within the third degree of the judge or the judge’s spouse or the spouse of such a relative.

(d) An owner of any interest in the property that is the subject of the action.

873.060.

The referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.

873.070.

The referee or any party may, on noticed motion, petition the court for instructions concerning the referee’s duties under this title.

873.080.

(a) In selling or dividing the property, the referee may, if it will be for the advantage of those interested, designate a portion of the property as a public or private way, road, or street. In connection therewith, the referee may also recommend the closure of any or all other roads on the property and allocation of the portion of the property occupied by such roads to the parties.

(b) Upon making such a designation and recommendation that is adequate to accommodate public and private needs, the referee shall report that fact to the court.

(c) Upon confirmation of the referee’s report by the court, subject to any necessary action by the appropriate public entities:

(1) The portion of the property designated as a public way, road, or street shall not be allocated to any of the parties or sold but shall be an open and public way, road, or street.

(2) The property designated as a private way, road, or street shall be a private way for the use of the parties interested.

(3) The roads recommended to be closed shall be deemed abandoned upon the terms stated in the order of confirmation.

– Contracts for Referees

873.110.

Subject to the limitations of this article, the court may:

(a) Authorize or approve contracts of the referee for the services and expenses of surveyors, engineers, appraisers, attorneys, real estate brokers, auctioneers, and others.

(b) Allow and direct payment of or reject claims under such contracts.

(c) Provide for the date of commencement of any lien provided by law or contract for such claims.

873.120.

(a) The referee may employ an attorney only with the approval of the court pursuant to Section 873.110.

(b) The application for approval shall be in writing and shall include the name of the attorney whom the referee wishes to employ and the necessity for the employment.

(c) The attorney so employed may not be attorney for, or associated with or employed by an attorney for, any party to the action except with the written consent of all the parties to the action.

(d) Any claim for compensation for the attorney shall detail the services performed by the attorney.

873.130.

The referee may, with the approval of the court pursuant to Section 873.110, employ a surveyor with the necessary assistants to aid in making a sale or division of property.

873.140.

The referee may, with the approval of the court pursuant to Section 873.110, employ an auctioneer, authorized to act as such in the locality, to conduct a public auction and to secure purchasers by such method for any property to be sold at public auction.

873.150.

A contract for the services of an attorney, surveyor, auctioneer, or other third person may provide for the accrual of interest at a rate not in excess of the legal rate for amounts due under the contract that are not paid within three months after the time they become due and payable.

873.160.

The referee is not personally liable on contracts made, or for expenses incurred, except as such liability is expressly assumed by the referee in writing.

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