Cost of Partition Action in California

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How Much Does a Partition Action Cost in California?

As partition attorneys in California, we are often asked about the cost of a partition action. Since attorneys are the largest cost, the real question is how much are the attorney’s fees for a partition lawsuit in California?

The answer to that question usually depends on how much your co-owners want to fight, how much there is to fight about, and the number of issues you wish to fight over. Many times, co-owners realize that there is no alternative in which their co-owner will get realistic, so the cost is simply an investment in ending the dispute to extract their equity. This usual cost for a partition action in California is between $5,000 to $12,000, with the most common cost for a partition action being about $8,000.

However, some attorneys, including the experienced partition attorneys at Talkov Law, are able to handle certain partition disputes on a contingency basis where there is equity in the property, meaning you do not pay attorney’s fees until you win the partition action, which is when the property is sold or refinanced.

Keep in mind that all of this information likely does not apply to property a married couple owns as joint tenants. Spouses looking for information about how to sell jointly owned property in a divorce should refer to this article about the sale of property in a divorce, written by a California divorce attorney.

1) Costs of Partition if the Case Settles Quickly (Most Common) – $5,000 to $8,000

The truth is that most partition cases don’t last that long. Usually, the partition lawyer will draft a complaint, file the complaint with the court, then have the complaint, summons, and a cover letter personally served on the defendant co-owner.

Most of the time, the co-owners realize the gimmick is up. Perhaps they’ve been living rent free for years, or not paying the mortgage, since their co-owner has let the conflict linger. Many times, the defendant, often times the co-owner in possession, is just trying to see if their co-owner, usually the co-owner out of possession, is willing to call their bluff through a partition action. Once they see that their co-owner is serious, they my negotiate a few deal points, but will eventually agree to sell or refinance the property.

The cost for these cases will likely be around $5,000 to $8,000, depending upon the number of attorney hours involved in the process. The usual time involved in these less complex cases from hiring the partition attorney to the sale of the property is about 4 to 8 months, meaning the co-ownership dispute will add about 2 to 6 months to the time required to have the property sold. To the extent the property is simply refinanced, the time involved from hiring the attorney to receiving a check for your interest in the property can be as little as 30 to 60 days.

2) Costs of a Partition if Your Co-Owner Needs an Introduction to the Downsides of the Legal System (Less Common) – $8,000 to $18,000

However, supposing the co-owner does not cooperate, but also does not litigate, costs can be higher. In such cases, the matter goes to a default because the co-owner does not respond when served with the summons and complaint. In those cases, the attorney would be required to prepare paperwork appointing a referee, who is usually a real estate broker, to list and sell the property. Even though the word “sell” is used, the buyer is often one of the co-owners, even if the property is sold by the court. Some common issues that might arise in these cases include:

  • Difficulties in locating any defendants in the case, thereby requiring a potential application to serve by publication.
  • Motion and opposition to the appointment of a referee;
  • Inability to agree on the list or sale price of the property;
  • Disagreement, motions and trials relating to offsets claimed by one party against the interest of a co-owner.

The drafting of an interlocutory orders to appoint a referee and confirm the sale of the property, in addition to the hearings on such matters brings the estimated costs, including attorney’s fees, in such cases closer to $8,000 to $18,000.

3) The Costs of Partition in the Rare Cases that Involve Complex Issues (Very Uncommon)

The majority of partitions actions in California will be over in less than 12 months for a moderate legal fee. However, there are the outliers that produce appeals, trials, etc. Usually, these rare cases involve wealthy owners, expensive properties, and complex issues of offsets or valuation. Remember that around 95% of cases settle before trial, often long before trial. Of those that go to trial, many settle before a verdict is reached. The odds that you will be dragged into court through an expensive trial is low. Rather, most partition cases are decided on motions wherein no party takes the witness stand or even goes to court. However, there are times where a partition complaint has been filed, but the defendant resists the partition efforts by raising affirmative defenses to partition actions. These complications would increase the cost of a partition of real property action beyond the estimated range. Examples of such complications increasing the cost of a partition action are follows:

In the rare cases when then these issues come up, the additional issues often unrelated to the co-ownership relation often increase the attorney’s fees, but also add additional value in the case since there are usually other issues between the parties. Note that most partitions involve some type of other relationship between the co-owners, whether they are siblings, former lovers, former business partners, or simply co-owners of an investment property that is the subject of the partition action. However, few of those cases end up generating complex legal issues that drive up attorney’s fees.

Ancillary Services for the Benefit of the Property (Uncommon)

On certain occasions, partitions involve related issues that generally benefit the property. These can include:

  • Disputed liens on the property that appear on a preliminary title report, including judgments, mechanic’s liens, tax liens, etc.;
  • Negotiating cash for keys to obtain possession of the property from any occupants.

Attorney’s fees in these matters can generally be collected in part or in whole from the other co-owner. [1]California Code of Civil Procedure 874.020

Who Pays for a Partition Action in California?

Many co-owners are glad to pay many tens of thousands to a Realtor to sell their house without batting an eye. However, spending even a penny due to the non-cooperation of their co-owner sometimes causes co-owners to be able to consider the benefits derived from those legal efforts to end the unhealthy co-ownership relation and unlock the equity in the property.

Generally, each co-owner will pay their own attorney’s fees for a partition action. However, California partition law does allow the court to award “reasonable attorney’s fees incurred or paid by a party for the common benefit.”[2]California Code of Civil Procedure 874.010(a) Generally, “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.” [3]California Code of Civil Procedure 874.040 This means that, if one co-owner is extremely uncooperative, and a court judgment of partition is ultimately required, the court may indeed award part or all of your attorney’s fees from the equity of the uncooperative co-owner.

However, this award of attorney’s fees occurs only “upon completion of a partition sale.”[4]In re Flynn, 297 B.R. 599, 605–06 (B.A.P. 9th Cir. 2003), rev’d and remanded on other grounds, 418 F.3d 1005 (9th Cir. 2005) Since most partition cases settle before a final judgment is entered, usually through an agreed sale or refinance of the property, most parties agree to walk away from attorney’s fees.

Whether the attorney’s fees are ultimately paid by you or your co-owner, it is important to find an experienced partition attorney to keep their attorney’s fees as reasonable as possible considering the facts in your case.

Contact an Experienced Partition Lawyer in California

Remember that the right to partition is absolute for all co-owners in California, so it is important to work with an experienced partition attorney to end a co-ownership relationship that has caused numerous problems. Our attorneys have litigated partition cases throughout California, reaching reasonable resolutions of our cases to end the co-ownership relationship. Call the experienced real estate attorneys at Talkov Law at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case.

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References

References
1 California Code of Civil Procedure 874.020
2 California Code of Civil Procedure 874.010(a)
3 California Code of Civil Procedure 874.040
4 In re Flynn, 297 B.R. 599, 605–06 (B.A.P. 9th Cir. 2003), rev’d and remanded on other grounds, 418 F.3d 1005 (9th Cir. 2005)
About Scott Talkov

Scott Talkov is a real estate lawyer, business litigator and bankruptcy lawyer in California. He founded Talkov Law Corp. after of experience with one of the region's oldest law firms, where he served as one of the firm's partners. He has been featured on ABC 7, CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterpise, and in Los Angeles Lawyer Magazine. Scott has been named a Super Lawyers Rising Star every year since 2013. He can be reached about new matters at info@talkovlaw.com or (844) 4-TALKOV (825568). He can also be contacted directly at scott@talkovlaw.com.

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