Code of Civil Procedure 874.312 CCP – Definitions (Uniform Partition of Heirs Property Act)

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California Code of Civil Procedure 874.312 is the California partition statute that defines terms used in the Uniform Partition of Heirs Property Act. The terms stated here are used throughout the Uniform Partition of Heirs Property Act. Notably, this statute defines “heirs property” as it is used in the Uniform Partition of Heirs Property Act legislation.

For purposes of this chapter, the following definitions apply:

(a) “Ascendant” means an individual who precedes another individual in lineage, in the direct line of ascent from the other individual.

(b) “Collateral” means an individual who is related to another individual under the law of intestate succession of this state but who is not the other individual’s ascendant or descendant.

(c) “Descendant” means an individual who follows another individual in lineage, in the direct line of descent from the other individual.

(d) “Determination of value” means a court order determining the fair market value of heirs property under Section 874.316 or 874.320 or adopting the valuation of the property agreed to by all cotenants.

(e) “Heirs property” means real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action:

(1) There is no agreement in a record binding all the cotenants which governs the partition of the property.

(2) One or more of the cotenants acquired title from a relative, whether living or deceased.

(3) Any of the following applies:

(A) Twenty percent or more of the interests are held by cotenants who are relatives.

(B) Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased.

(C) Twenty percent or more of the cotenants are relatives.

(f) “Partition by sale” means a court-ordered sale of the entire heirs property, whether by auction, sealed bids, or open-market sale conducted under Section 874.320.

(g) “Partition in kind” means the division of heirs property into physically distinct and separately titled parcels.

(h) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(i) “Relative” means an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or state law other than this chapter.

California Code of Civil Procedure 874.312

Examples of “ascendant” relatives

Ascendant relatives include parents, grandparents, or great-grandparents.

Examples of “collateral” relatives

Collateral relatives include siblings, cousins, aunts, uncles, nieces, and nephews.

Examples of “descendant” relatives

Descendant relatives include children, grandchildren, or great-grandchildren.

Definition of “heirs property”

Not all inherited property is considered heirs property. California Code of Civil Procedure 874.312(e) lays out the basic requirements of heirs property. Each of these requirements must be met: there must not be an agreement on record, title must have been required from a relative, and there must be a minimum familial ownership of 20% in one of 3 ways

No agreement in record

Heirs property is property that has been inherited when a property owner dies intestate, which means without an estate planning instrument in place such as a will or trust. To qualify under the Uniform Partition of Heirs Property Act, there cannot be a recorded instrument describing how to distribute the inherited property.

Title acquired from a relative

Title must be required by a relative (definition of relative explained below).

Minimum familial ownership requirement

As described in the statute, at least one of the following must apply: 20% or more of the ownership interests must be held by cotenants who are relatives, 20% or more of the interests are held by someone who acquired title from a relative, or 20% or more of the cotenants are relatives. Consider the following examples. Note: in each example below, there is no agreement on record governing the partition of the property and at least one co-owner acquired title from a relative.

Example 1: John Doe has a 25% ownership interest in a home. His 3 cousins also each have 25% ownership interests. John qualifies because twenty percent or more (in this case, 25%) of the interests are held by cotenants who are relatives (in this case, cousins)

Example 2: Jane Doe acquired a 20% interest in a home from her grandmother. The other co-owners were friends of her grandmother and are not related to Jane. The Uniform Partition of Heirs Property Act applies to Jane because she inherited 20% of her ownership interest from a relative (in this case, her grandmother).

Example 3: A family sold 80% of their ownership interest in their home to an investment company. The other 20% belongs to a pair of siblings. The siblings may qualify for the Uniform Partition of Heirs Property Act because 20% or more (in this case, 20%) of the cotenants are relatives (in this case, siblings)

Definitions of “partition by sale” and “partition in kind”

As the statute makes clear, “partition by sale” means a court-ordered sale of the entire heirs property, whether by auction, sealed bids, or open-market sale conducted under Section 874.320. By contrast, “partition in kind.” means the division of heirs property into physically distinct and separately titled parcels. Along with a partition by appraisal, these are the three manners of partition.

Definition of “record”

Recall that heirs property in one in which: “There is no agreement in a record binding all the cotenants which governs the partition of the property.” California Code of Civil Procedure 874.312(e)(1). “Record” is described in this section as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.” Therefore, heirs property is property which is not governed by a written agreement governing the property. This can include a tenants-in-common agreement (TIC agreement) or any other document in which the parties agree how the property will be governed, perhaps one that waives the right to a partition.

Definition of “relative”

Relative is defined in California Code of Civil Procedure 874.312(i) as “an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or state law other than this chapter.” These family members include children, parents, siblings, grandparents, grandchildren, cousins, aunts, uncles, nieces, nephews, great-grandparents, or great-grandchildren. Note that being a blood relative is not a requirement and that relatives who are related by marriage or adoption are statutorily included.

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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