Code of Civil Procedure 872.810 CCP – Division in Accordance with Interests (Manner of Partition)

California Code of Civil Procedure 872.810 is the California partition statute that provides for the manner of partition to be the manner set forth in the interlocutory judgment of partition, i.e., partition in kind vs. partition by sale. The statute provides that:

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.

California Code of Civil Procedure 872.810

General Preference for Partition in Kind

“Section 872.810 continues the preference of prior law for partition by division in kind.”^[1]1976 Law Revision Commission Comment to California Code of Civil Procedure 872.810 “Partition in kind is favored in law and in the absence of proof to the contrary the presumption in favor of in kind division will prevail.”^[2]Butte Creek Island Ranch v. Crim (1982) 136 Cal.App. 3d 360, 365

Exception Swallows the Rule: Single-Family Homes Will Almost Always Result in Partition by Sale

However, Section 872.810 must be read in connection with Section 872.820(b), which provides that:

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:…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.^[3]California Code of Civil Procedure 872.820(b)

As a practical matter, this exception for partition by sale in 872.820(b) swallows the general preference for partition in kind in 872.810 for most partitions. This is because it is “more equitable” to sell the single-family homes that form the property in most partitions since division of such a house into two parcels of equal value is usually not possible. As one secondary source explains, a “sale may be more equitable if, for example, the value of the whole would exceed that of the divided parcels, or zoning restrictions make physical division impracticable.”^[4]Determination of Manner of Partition., 12 Witkin, Summary 11th Real Prop (2020) § 73

One court explained this reality that most properties are partition by sale as follows: “In many modern transactions, sale of the property is preferable to physical division since the value of the divided parcels frequently will not equal the value of the whole parcel before division. Moreover, physical division may be impossible due to zoning restrictions or may be highly impractical.”^[5]Butte Creek Island Ranch v. Crim (1982) 136 Cal. App. 3d 360, 366–67; accord Cummings v. Dessel (2017) 13 Cal. App. 5th 589, 597

A rare exception would be a single-family home located on a parcel with a significant portion of land with value equal to the house, e.g., a farm house. Another rare exception might be when there are two homes on a lot. However, generally, this element of the manner of partition for an interlocutory judgment is almost always met as a matter of law for single-family homes.^[6]California Code of Civil Procedure 872.720

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