California Code of Civil Procedure 873.600 is the California partition statute that requires the Court to sell the property in the partition by sale in the manner and upon the terms agreed to by the parties to the partition action. The statute provides that:
Notwithstanding any other provision of this title, the court shall order sale by such methods and upon such terms as are expressly agreed to in writing by all the parties to the action.
California Code of Civil Procedure 873.600
This statute “permits the parties to agree to sales procedures that may vary from the procedures prescribed in this chapter. In order for Section 873.600 to be operative, the consent of all parties is necessary whether or not they have appeared. As a consequence, this section cannot be used where unknown owners are made parties unless a guardian ad litem has been appointed for them. On the other hand, the consent of persons named as parties who are not served and who have not appeared is unnecessary since their interests will not be affected by the judgment in the action. It should be noted that the court also has authority to prescribe additional sales procedures. See Section 873.610.”California Code of Civil Procedure 873.600, Law Revision Commission Comments (1976)
“Section 873.600 is intended only to empower the owners to specify terms and conditions of sale prior to the referee’s entry into a contract.”Sullivan v. Dorsa (2005) 128 Cal.App. 4th 947, 961
As one court explained in providing extensive analysis to this very short statute:
By declaring that “the court shall order sale” in accordance with agreed methods and terms, section 873.600 explicitly speaks from the time before a sale has occurred, i.e., before the referee has entered into an agreement. This understanding is consistent with the placement of section 873.600 in article 2 of title 10.5 of chapter 6 of the Code of Civil Procedure. That article—which the Law Revision Commission entitled “Sales Procedures” (13 Cal. Law Revision Com. Rep. [(1976)] p. 451)—empowers the court to direct, approve, or prescribe various terms of sale, the contents of any notice of sale, and the procedures to be employed in selling the property. (See §§ 873.600–873.690.) The article is thus concerned with matters to which the court must attend before the property is sold. Section 873.600 therefore cannot be understood to empower the court to impose new terms after a sale is reported by the referee, and while its confirmation is pending. The statutes governing those proceedings appear in article 3 of the above cited chapter, under the title Consummation of Sale. (13 Cal. Law Revision Com. Rep., supra, at p. 457.)
This context confirms the sense conveyed by the wording of the statute itself that section 873.600 is intended only to require that the court give effect to the unanimously expressed wishes of the parties in formulating an interlocutory judgment and deciding what terms to include in the order of reference or notice of sale. This is not to say that section 873.600 loses all force after an interlocutory judgment has entered. The owners may well be entitled to come forward at some later time and, by unanimous consent, seek an order prescribing new terms to be included in instructions to the referee or in any future notice of sale. Further, the owners’ wishes, or more precisely their unanimous belief that the property can and should be sold on substantially more advantageous terms than those offered for confirmation, may and should be weighed by the court in deciding whether to confirm a sale. But section 873.600 cannot reasonably be understood to grant the owners a peremptory veto over a sale that has already been made and is now brought before the court for confirmation. To make the owners’ belatedly expressed preferences binding on the court at that stage would license them to trifle with the court, wasting its time and that of other participants, and ultimately reducing the efficacy of judicial partition sales by reducing the willingness of purchasers and others (including brokers) to participate in such transactions.Sullivan v. Dorsa (2005) 128 Cal.App. 4th 947, 961–62
This seemingly innocuous statute was applied in an opinion that was affirmed on appeal in 2021 whereby a judgment creditor was denied “a portion of the proceeds from the sale” even though the parties “closed escrow before [the] judgment expired.” Rather, the court found that the stipulated manner of sale to have the co-owner’s “sales proceeds ‘placed in escrow and shall only be released upon order or final judgment of this court” under Section 873.600 governed such that nothing was paid to the creditor when the funds were disbursed. The court found that the creditor’s “claim of entitlement to these funds is undermined by the fact that, upon expiration of its judgment, it is barred from any ‘further action, including … collection … pursuant to the judgment.’ (Cal. Law Revision Com. coms., 16B West’s Ann. Code Civ. Proc. (2009 ed.) foll. § 683.020, p. 151 [1982 Addition].)”Starcevic v. Pentech Financial Services, Inc. (Cal. Ct. App. July 7, 2021) No. D076320, — Cal.Rptr.3d —-, 2021 WL 2816917, at *9, 21 Cal. Daily Op. Serv. 6893
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.
|↑1||California Code of Civil Procedure 873.600, Law Revision Commission Comments (1976)|
|↑2||Sullivan v. Dorsa (2005) 128 Cal.App. 4th 947, 961|
|↑3||Sullivan v. Dorsa (2005) 128 Cal.App. 4th 947, 961–62|
|↑4||Starcevic v. Pentech Financial Services, Inc. (Cal. Ct. App. July 7, 2021) No. D076320, — Cal.Rptr.3d —-, 2021 WL 2816917, at *9, 21 Cal. Daily Op. Serv. 6893|