What is a partition action?

A partition action is a legal remedy available to someone who needs to divide property that they jointly own with someone they no longer want to hold property with but have been unable to agree with the other owner(s) about whether or how to divide the property. 

Partition may be an option when two parties find themselves jointly owning land outside of marriage, break up, but still own the property together and can’t agree how to peacefully sub-divide the property or equitably sell it. “Equitable” meaning a fair way to give each party their fair share of either the land or the sale price. 

Real estate partition examples

As an example, an unmarried couple decides to buy a home or investment property together and one of them has a better credit score than the other party. The bank provides a loan to only one of them and all goes well for a time, with each of them paying off the mortgage loan from their personal accounts. All goes well until they decide to split up, but one of them refuses to sell the property.

This situation would be a bit easier if both parties invested equally in one (1) acre of land and never improved (i.e., built a house) on the land. In that case, they would have a few options: (a) sell the entire acre and split the proceeds evenly; (b) one party keeps half an acre and the other party sells their one-half acre share to a third-party or (c) divide the one-acre property into separate half-acre shares. (Please note: if the couple was married, then they would need to sort their property dispute only in a divorce proceeding, and they should contact a California divorce attorney.) 

If the situation was slightly different – such as where the couple contributed unequal amounts towards the property, or if only one member of the ex-couple held title and refused to sell – then the other would need to decide whether to abandon their claim to the property or hire a lawyer to bring a real estate partition asking the court to either equitably divide the property or sell the property and equitably divide the proceeds.

What does California law say?

Under California Code of Civil Procedure (C.C.P.) section (§) 874.040, “court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” [C.C.P. § 874.040.] If the judge feels that the party in control committed fraud, oppression (an example of “oppression” would be using the fact that they alone hole title to try to force a higher payment, or to deny any payment at all), or abuse of the other party, the judge is empowered by C.C.P. § 874.040 to award costs, including reasonable attorney’s fees where one had been the victim of fraud, abuse or bad faith non-cooperation.

Inheritance partitions

Another common type of partition occurs when family members jointly inherit a property from a relative. For example, the first generation owns a homestead in a rural area and their children move out of town after growing up. In such a case, those children (or grandchildren) may eventually inherit a property from the first generation in equal shares (four second generation children in this example), but they can’t agree whether to divide, sell or keep the property as a family home.

Child A: “Sam” wants to keep the property, because he has fond memories of his childhood

Child B: “Sally” wants to sell the property so that she can afford a move to a larger house in her new city to house her own growing family

Child C: “Susan” would be willing to build her own house and move back to the area to start a family with her fiancé and thinks she would enjoy living next to Sam

Child D: “Seth” doesn’t want to get involved but he wouldn’t mind the extra money

In the example above, the choice would be simple if Sam, Sally, Susan, and Seth would agree to settle the issue out of court. Susan and Sam could agree with Sally and Seth to initially divide the property, which includes flat, undeveloped grassland in back into two parcels. Sally and Seth could sell their share, while Sam and Susan could plan on sub-dividing their share into separate buildings for their families. That would by far be the easiest solution. 

However, if the siblings could not agree – or if one party was deliberately blocking a sale by the others without any good cause other than a stubborn desire to have their way – the other siblings could file a partition action to sell or divide the property and assess attorney’s fees and costs against whichever party was causing the other siblings to absorb excessive fees and costs. (Lin v. Jeng, 203 Cal. App. 4th 1008.)

Contact the Real Estate Attorneys at Gallagher Krich, APC

If you have exhausted all reasonable efforts to get a former romantic partner, roommate or family member(s) to fairly resolve your case, call the experienced California real estate lawyers of Gallagher Krich APC at (858) 926-5797 or use our convenient online contact form for a free consultation.

If you have significant equity in the property, our attorneys may be able to provide contingency-based representation (no upfront costs!) on a case-by-case basis. 

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