A partition action is required when multiple people co-own undivided interest in a property. The purpose of a partition action is to allow co-owners to obtain individual title to some defined portion of a jointly owned property. You should consult with a skilled real estate attorney to make sure your rights are protected during this type of legal action.
Filing a Partition Action
Partition actions, as per the California Code of Civil Procedure section 872.210, can be brought by:
- Co-owner of a property.
- Owner of an estate in real property if the property is owned by several persons.
Individuals with a right to the property specified in section 872.210 can bring a partition action even if they don’t have a right to immediate or actual possession of the property. Individuals that don’t have any right in a property listed under section 872.210 cannot bring a partition action.
Your Right to Partition in California
Co-owners of a property don’t need a reason to initiate partition proceedings. You have the right to commence a partition action if you have enough interest in a property to issue an action. This means that you should have a clear title. The determination whether you have a clear title or not will be determined by the court, regardless of whether the trial is contested or uncontested.
Other Types of Relief in a Partition Action
The court may order a property to be physically divided if it can be. This way each party receives a proportionate share. Taking this into account, this is not always the case since most real estate has improvements in the form of a house or building that cannot be physically divided between multiple owners.
This solution is usually possible where the real property is an unimproved and vacant lot. It’s generally more practical for a property to be sold entirely and the proceeds divided between co-owners.
When Does a Partition Action Become Necessary?
Property usually has a single owner. It’s passed onto multiple owners when the original owner leaves it in their will. The new owners may not have the same aspirations or goals regarding the property. If the parties are unable to agree on a single purpose for the property, a partition action may be required to divide the property.
Partition actions may be initiated by a couple that purchases a property jointly but doesn’t end up marrying. The couple may not agree on how the property needs to be used. This may again lead to a partition action.
Limitations to Partition Actions
A party can waive their right to real estate partition action through Code of Civil Procedure section 872.710. The waiver can happen through a valid contract or other methods. There are limits to partitioning partnership property. In general, property owned by a partnership doesn’t necessarily guarantee partition rights. This happens when the rights of unsecured creditors can become prejudiced.
Additional limitations can be imposed wherever a party’s right to partition happens from a successive estate. In the case of a successive estate, a partition can only happen if it is in the best interests of all parties.
These are a few factors considered by the court in making such a determination:
- Expense of repairs
- Taxes or other charges
- Character of the property
- Circumstances under which the estate was created
- Factors deemed appropriate by the court
Recoverable Costs Through a Partition Action
There are several costs listed under the Code of Civil Procedure section 874.010 that can be recovered by various parties in a partition action. These include:
- Referee costs.
- Reasonable fees paid to the attorney for common benefit.
- Compensation for those employed by the referee in the partition action, including the surveyor.
- Costs for a title report.
Any other costs expended for the common benefit may also be recoverable through a partition action.
Resolving a Partition Situation Without a Court-Ordered Sale
In many cases, all parties to a partition action agree to sell their property once a lawsuit is brought. This can happen with or without court intervention.
The parties may decide to divide the proceeds fairly. However, it is necessary to have a binding settlement agreement to make sure the parties follow through on the resolution.
Another way of preventing the sale of a property is to have one co-owner agree to buy out the share of the other co-owners. A new deed may be necessary for such situations to show new ownership.
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