Often times when two or more parties own real estate together there may come a day where one of the
owners wants to cash out. Be it boyfriend/girlfriend, parent/child, or business partners, the law is clear,
no co-owner of real estate has a right to withhold the rights to sell or divide real estate. In other words,
there is no defense to a partition action.
Real property partition actions are equitable in nature and are governed by statute. [Code Civ. Proc., §§
872.010 et seq.] The superior court in the county where the real property is located has jurisdiction over
the partition action. [Code Civ. Proc., § 872.110] Real property may be partitioned in three ways: (1)
physical division of the property [Code Civ. Proc., §§ 873.210 to 873.290]; (2) sale of the property and
division of the proceeds [Code Civ. Proc., §§ 873.510 to 873.850]; or (3) court approved and supervised
partition by appraisal. [Code Civ. Proc., §§ 873.910 to 873.980] There is a presumption that property
should be divided if possible, rather than forcing a sale on someone who intended to own the property.
[Code Civ. Proc., § 872.810; see Butte Creek Island Ranch v. Crim (1982, 3rd Dist) 136 Cal App 3d
360, 186 Cal Rptr 252 (reversing order for sale of property)]. That said, when the co-ownership sought
to be terminated is in relationship to a single family residence, commercial building, or a parcel of land
that cannot be further divided, the court will order options (2) and (3).
Partition by appraisal requires the parties to agree to such a procedure. Cummings v. Dessel, 13 Cal.
App. 5th 589, 220 Cal. Rptr. 3d 463 (1st Dist. 2017) (finding that the court erred when it ordered a sale
between the parties based upon an appraisal.)
What is required to Initiate a Partition Action
In order for the court to consider a party’s request for partition, the party bringing the action must file a
complaint that contains all of the following [Code Civ. Proc., § 872.230]:
(1) a description of the property, including both the legal description and the street address, if any.
(2) a description of all interests claimed by the plaintiff in the property.
(3) a description of all interests, either of record or actually known to the plaintiff or held or claimed
by other persons, that the plaintiff reasonably believes will be materially affected by the action,
whether or not the plaintiff knows the names of those holding the interests.
(4) the estate as to which partition is sought, such as a fee title, estate for years, or other interest in
real property, and a prayer for partition of the interest.
(5) allegation of the facts in ordinary and concise language that justify sale of the property, if
plaintiff seeks sale.
This means that a plaintiff must name as defendants all persons having or claiming interests of record,
actually known to the plaintiff, or reasonably apparent from an inspection of the property. [Code Civ.
Proc., § 872.510; §§872.20-872.550] The form, content, and manner of service of summons is governed
by the general provisions applicable to civil actions. [Code Civ. Proc., § 872.310]. In the event that a
person of record is deceased, no longer in business or cannot be located, sometimes plaintiffs are
required to use alternative service methods such as service by publication. If service is by publication,the property must be posted within 10 days of the order for service by publication. [Code Civ. Proc., §
872.320]
After filing the complaint, it is important and required that plaintiff’s place third party’s on notice of the
action. To accomplish this, immediately on filing the complaint, the plaintiff must record a notice of
pendency of action, or lis pendens, in the county where the property is located. If the plaintiff does not
do so, the court on motion of any party or on its own motion, must order the party seeking partition to
record the notice and must stay the action until the notice is recorded. [Code Civ. Proc., § 872.250]
Key Considerations and Court Actions During a Partition Action
As discussed earlier, the court favors division in kind over division by sale when considering partition
actions. Notwithstanding, the realities of southern California are that most properties that come before
the court are not capable of being divided in kind. In other words, the court cannot cut a house in half.
Therefore, in the absence of an agreement, a party seeking a sale of the property rather than division of
it, must show that under the circumstances a sale and division of the proceeds would be more equitable
than division of the property. [Code Civ. Proc., § 872.820] The burden of proof is on the party seeking to
force a sale. [Richmond v. Dofflemyer (1980, 5th Dist) 105 Cal App 3d 745, 164 Cal Rptr 727] This
burden can be met by showing that the property cannot be divided equally or fairly or that division
would substantially reduce the value of the property. [Butte Creek Island Ranch v. Crim (1982, 3rd Dist)
136 Cal App 3d 360, 186 Cal Rptr 252 (reversing order for sale of property)]
Once the partition action is filed, and during the pendency of the partition action, the court may issue
temporary restraining orders, with or without bond, for the purpose of preventing waste, protecting the
property or title thereto, or restraining unlawful interference with the partition. [Code Civ. Proc., §
872.130] In addition, the court may appoint a receiver under Code Civ. Proc. § 564, subd. (b)(1).
[Blodgett v. Haddock (1949) 95 Cal App 2d 17, 212 P2d 26 (superior court has jurisdiction to appoint
receiver as ancillary remedy in partition action)]
If the court appoints a receiver or broker to handle a partition sale, he or she is likely to be granted at
least limited discretionary authority to resolve disputes regarding the terms of the sale, including the
value. In that case, the receiver or broker handling the sale will be protected by quasi-judicial immunity.
Holt v. Brock, 85 Cal. App. 5th 611, 301 Cal. Rptr. 3d 412 (3d Dist. 2022), review denied, (Mar. 15,
2023).
If the court finds that the plaintiff is entitled to partition, the court will make an interlocutory judgment
determining the interests of the parties in the property and ordering the partition. The interlocutory
judgment may, but need not, determine the manner of partition. If the court determines that it is
impractical or highly inconvenient to make a single interlocutory judgment determining all interests, the
court may first determine the interests of some of the owners as if those parties were the sole parties in
interest. The court may subsequently determine the interests of the remaining parties or may allow the
interests to remain without further partition if the parties so desire. [Code Civ. Proc., § 872.720] The
court may appoint a referee to ascertain the facts necessary for the determination of interests in the
property. [Code Civ. Proc., § 872.630] Use of a referee is not mandatory. [Richmond v. Dofflemyer
(1980, 5th Dist) 105 Cal App 3d 745, 164 Cal Rptr 727 (court need not determine all interests at same
time)]
An interlocutory judgment in a partition action must include two elements: (1) a determination of the
parties’ interests in the property and (2) an order granting the partition. The actual manner of the
partition (i.e. whether there will be a physical division of the property or a sale of the property with the
proceeds divided according to the interests) can be ordered only when or after the parties’ ownership is
determined, but not before. Summers v. Superior Court, 24 Cal. App. 5th 138, 234 Cal. Rptr. 3d 63 (1st
Dist. 2018), as modified, (June 27, 2018) (a sale may not be ordered before the respective interests are
determined.).
An interlocutory judgment in a partition action is conclusive as to the matters determined therein, but
does not excuse a party’s obligations under other laws. Starcevic v. Pentech Financial Services, Inc., 66
Cal. App. 5th 365, 280 Cal. Rptr. 3d 764 (4th Dist. 2021). In this case, the party’s claim was based on a
judgment recorded long before the partition action was filed. The stipulated interlocutory judgment set
forth the various parties’ interests. Unfortunately for the claimant, the 10-year period for enforcement of
the judgment expired after the interlocutory judgment but before the final resolution of the partition
action. The court ruled that the judgment creditor lost any interest in the property as a matter of law
when it failed to renew the judgment.
Generally, cotenants have an absolute right to partition the property. That right can be waived or altered
by agreement, such as an agreement giving one cotenant the right of first refusal. [See Harrison v.
Domergue (1969, 1st Dist) 274 Cal App 2d 19, 78 Cal Rptr 797, 37 ALR3d 955 (agreement did not bind
successors in absence of express provision that it ran to benefit of those successors); for discussion of
cotenancy, see § 5:23] An interlocutory judgment of partition severs a joint tenancy, and the parties
become tenants in common. [Milian v. De Leon (1986, 4th Dist) 181 Cal App 3d 1185, 226 Cal Rptr 831
(joint tenants were not entitled to reimbursement for uneven payments toward acquisition of property)]
Final Accounting in Partition Actions
Partition actions include final accountings between the parties for expenditures for necessary repairs,
improvements that enhance the value of the property, payments on encumbrances, and other
expenditures for the benefit of the entire property. [Wallace v. Daley (1990, 3rd Dist) 220 Cal App 3d
1028, 270 Cal Rptr 85 (partition by sale does not prevent reimbursement for improvements made while
cotenant)] A cotenant who pays taxes, trust deed payments, or other charges against the property, or who
expends money for the preservation of the property, is entitled to contribution from the cotenant and, on
partition by sale, is entitled to reimbursement for those expenses before division of the proceeds among
the property owners. [Milian v. De Leon (1986, 4th Dist) 181 Cal App 3d 1185, 226 Cal Rptr 831]
Where one cotenant has, in good faith, expended money in making permanent improvements necessary
to the preservation of the property, that cotenant is entitled to credit for those expenditures in an action
for partition. [ Lazzarevich v. Lazzarevich (1952) 39 Cal 2d 48, 244 P2d 1 ]
Recovering Costs and Attorney’s Fees in a Partition Action
Costs of partition are generally attributed to the parties in accordance with their interest in the property.
However, the court may make any other apportionment that it finds equitable. [Code Civ. Proc., §
874.040] Recoverable costs include reasonable attorney fees incurred for the common benefit, referee
fees and expenses, surveyor fees or fees of others employed by the referee, the reasonable costs of a title report, and other expenses determined by the court to be incurred for the common benefit. [Code Civ.
Proc., § 874.010; see Stutz v. Davis (1981, 2nd Dist) 122 Cal App 3d 1, 175 Cal Rptr 701 (partition
action attorney fees should be apportioned according to property ownership; lienholders are not entitled
to fees)]
California Code of Civil Procedure section 874.040 provides that the Court shall apportion the costs of
partition among the parties in proportion to their interests or may make such other apportionment as may
be equitable. This award may include attorneys’ fees incurred or paid by a party for the common benefit.
In determining the “common benefit,” the Court considers the proper distribution of the parties’
respective shares, a determination which may require litigation. The fact that one party resists partition
does not affect this allocation unless that resistance is unreasonable. The mere fact that one or more
parties may suffer adverse tax consequences does not make their resistance to partition reasonable. Orien
v. Lutz, 16 Cal. App. 5th 957, 224 Cal. Rptr. 3d 736 (2d Dist. 2017).
How Long Does a Party Have to Bring a Partition Action- Statute of Limitations
There is no statute of limitations for a partition action between tenants-in-common. Yeh v. Tai, 18 Cal.
App. 5th 953, 227 Cal. Rptr. 3d 275 (2d Dist. 2017).
What are the Remedies In a Partition Action
The Civil Code sets out specific remedies in a partition action. An interlocutory judgment is available
which must include: (1) a determination of the parties’ interests and (2) whether the partition is to be
accomplished through a physical division of the property or through a sale with the proceeds to be split
according to the parties’ interests. The partition statutes do not allow a court to order the manner of
partition before it determines the ownership interests in the property. Summers v. Superior Court, 24
Cal. App. 5th 138, 234 Cal. Rptr. 3d 63 (1st Dist. 2018), as modified, (June 27, 2018).
