California Code of Civil Procedure 872.210 is the California partition statute that specifies who is authorized to commence a partition action. The statute provides that:
(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.California Code of Civil Procedure 872.210
The impact of this section is that: “The right of a cotenant to have the property in which he owns an interest partitioned is ordinarily absolute. However, that right may be waived or altered by agreement.”Harrison v. Domergue (1969) 274 Cal.App. 2d 19, 21 Indeed, California courts have established that “a co-owner of property has an absolute right to partition unless barred by a valid waiver.” Orien v. Lutz (2017) 16 Cal.App. 5th 957, 962
Generally, in a partition action, consent among co-owners is not required to file a partition action, thereby establishing that the right to partition is absolute. “A tenant in common has an absolute right to partition.” Formosa Corp. v. Rogers (1951) 108 Cal.App. 2d 397, 409
However, waiver to partition as described in California Code of Civil Procedure 872.710 is a rare exception to the rule that the right of partition is absolute. The impact of Section 872.710 is that: “A co-owner of property has an absolute right to partition unless barred by a valid waiver. (Code Civ. Proc., § 872.710, subd. (b).) ‘[T]he right of partition may be waived by contract, either express or implied.’ (American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014, 131 Cal.Rptr. 270.) ‘An agreement giving rights of first refusal to the other tenants implies an agreement not to bring a partition action in lieu of a sale to the cotenants.’ (Harrison v. Domergue (1969) 274 Cal.App.2d 19.)”LEG Invs. v. Boxler (2010) 183 Cal.App. 4th 484, 493. “The right of a cotenant to have the property in which he owns an interest partitioned is ordinarily absolute. However, that right may be … Continue reading
Therefore, unmarried co-owners of a property may file a partition action unless it is barred by waiver.
Note that property that is held as community property must be addressed in family court, not by way of a partition action. Spouses looking for information about how to sell jointly owned property in a divorce should seek the advice of a California divorce attorney.
Contact an Experienced Partition Attorney in California
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our experienced partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15 minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568) or fill out a contact form online.
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|↑1||Harrison v. Domergue (1969) 274 Cal.App. 2d 19, 21|
|↑2||Orien v. Lutz (2017) 16 Cal.App. 5th 957, 962|
|↑3||Formosa Corp. v. Rogers (1951) 108 Cal.App. 2d 397, 409|
|↑4||LEG Invs. v. Boxler (2010) 183 Cal.App. 4th 484, 493. “The right of a cotenant to have the property in which he owns an interest partitioned is ordinarily absolute. However, that right may be waived or altered by agreement.” Harrison v. Domergue (1969) 274 Cal.App. 2d 19, 21. Said another way: “While it is the general rule that a cotenant may require a partition of the cotenancy as a matter of absolute right, this right may be modified or waived by contract, either expressly or by implication.” Schwartz v. Shapiro (1964) 229 Cal.App. 2d 238, 253.|