How to Win a Partition Action

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The Tricks to Winning a Partition Action in California

A partition action is the only court process in California to end disputes when parties are co-owners (also known as co-tenants) of real property. Indeed, the court must divide the real estate equitably among its co-owners so long as a partition is found to be appropriate.[1]California Code of Civil Procedure 872.210 Our experienced partition lawyers in California provide just a few of the tricks to make sure that you win any partition action.

1) Force Your Co-Owner to Sell the Property

The most common issue that arises in partition actions is that one co-owner wants to sell, but the other co-owner (usually the co-owner in possession) doesn’t want to sell. There are even rumors that a court is required to weigh the equities to allow the court to grant a complaint for partition by sale only if a plaintiff is deemed to be a good person, and only if a defendant doesn’t have a need to reside at the property. This rumor is completely made up (there is no such requirement).

Rather, the law refers to the “right to partition.”[2]California Code of Civil Procedure 872.710(a) The rule is that: “A co-owner of property has an absolute right to partition unless barred by a valid waiver.” [3]Orien v. Lutz (2017) 16 Cal. App. 5th 957 As some courts explain it, “if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right is absolute.”[4]Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.

Rather, the law refers to the “right to partition.”[5] Code Civ. Proc. § 872.710(a) The rule is that the “partition…shall be as of right unless barred by a valid waiver.”[6] Code Civ. Proc. § 872.710(b). Indeed, “each cotenant has an ‘absolute’ right to partition the common property.”[7] Right of partition—In general, 4 Cal. Real Est. (Miller & Starr 4th ed.) § 11:14

Remember that it is still your house, and that moving out does not end your co-ownership. Stand your ground, and feel free to move back in, even if they try to prevent you from returning (known in the law as an ouster). Don’t be intimated by your co-owners, even if they are family, friends, former romantic interests, or otherwise. If they are living on your equity, contact a skilled partition lawyer to unlock the value in your co-owned house.

With some rare exceptions, a partition lawsuit brought by an experienced California partition lawyer cannot be lost as the property will eventually be sold, so long as it cannot be divided by partition in kind.

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.

2) Stopping a Partition Action in California and Becoming the Sole Owner

When a partition action is filed, it is important for the defendants to understand how to assert their rights to win the partition action, stop the partition action, and even becoming the sole owner.

One common issue that arises is whether the plaintiff is an equitable owner of their fractional interest in the property, as opposed to simply being a legal owner of record because their name is on the deed. [8]California Evidence Code 662 This is commonly raised through a quiet title action. This is one of many affirmative defenses to partition actions that should be considered.

Further, the plaintiff may want the case to proceed quickly, but the other co-owner(s) may wish to have additional time to evaluate their options, locate legal counsel, obtain appraisals, apply for a loan to buy out the other owner, research legal defenses, find relevant documents, or otherwise. Or, perhaps the defendant co-owners are undergoing a temporary financial issue that gave rise to the partition and hinders a solution. Sometimes time helps parties come together to determine a solution to the problem. On other occasions, changes in the real estate market, such a decrease in prices, may allow for a solution to the case. Obtaining additional time requires the skill of an experienced partition attorney.

As explained above, the primary hurdle that a plaintiff might face is whether there has been a waiver of the right to partition. Indeed, a “co-owner of property has an absolute right to partition unless barred by a valid waiver.”[/fn] Orien v. Lutz (2017) 16 Cal.App. 5th 957, 962 (citing Code Civ. Proc. § 872.710(b) (“partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver”)); see, e.g., Pine v. Tiedt (1965) 232 Cal. App. 2d 734; American Medical International, Inc. v. Feller (1976) 59 Cal.App. 3d 1008, 1014.[/fn] Ordinarily, a waiver of the right to partition is found in “an agreement among co-owners of property….” [9]Orien v. Lutz (2017) 16 Cal. App. 5th 957, 963 Establishing this defense is possible, but a writing is likely to go a long way with a court. For more information, check out our article explaining that the right to partition is absolute in California.

Even further, the most common way to stop a partition action is to buy the plaintiff co-owner’s interest in the property. As explained in our article on Affirmative Defenses to a Partition Action in California, there are many tricks to ensuring that you pay the least amount of money to your co-owner, such as including the costs of sale in any calculation of equity as well as properly calculating any offsets that might be awarded. Determining the least that you can pay by deducting costs of sale, determining a realistic valuation for the property, and subtracting any offsets in favor of the defendant(s) will help you win the partition. There are many tricks to obtaining the lowest possible price that require a skilled partition lawyer.

3) Maximize Your Offsets in a Partition Accounting

The vast majority of partition actions are settled. Usually, this means that one party will file the complaint, and the other co-owner(s) will exchange information about the likely outcome of a court if the property is sold and an accounting is conducted to determine the distribution of the proceeds. This accounting phase of the partition involves the calculation of offsets in favor of each party. Offsets involve claims that one party is entitled to more than their fractional ownership in the property.

Perhaps the most common claim of offset is that one party paid more than their fractional share of the mortgage, taxes, insurance, repairs, improvements, or other property related expenses. Another common offset is for non-property related expenses that became intertwined with the property, such a refinance of the mortgage on the property whereby one party’s debts were paid or funds were obtained and spent for a purpose benefitting only one party, such as the founding of a business. Another claim is that the mortgage lender required that the credit card debts of one of the co-owners be paid down to close escrow, which is done to improve the debt to income ratio of the borrowers.

These claims can be raised in partition actions to maximize your offsets to win the partition. [10]Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1036 (“Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each … Continue reading

However, the most common question that co-owners ask is whether they can obtain an offset for recover attorney’s fees and partition fees in a partition action,. The American rule is that each party pays their own fees. However, a plaintiff can recoup attorney’s fees from the net proceeds that would have otherwise been distributed to an uncooperative defendant in a partition action. As described in The Trick to Recovering Partition Attorney’s Fees Against an Uncooperative Co-Tenant, plaintiffs should document all instances of non-cooperation by the co-tenant in an orderly sale or other offer to accept a buyout. This documentation can then be present to the court in the accounting that occurs after the property is sold. In other words, “section 874.040 permits the trial court to apportion attorney fees based upon equitable considerations.” [11]Lin v. Jeng (2012) 203 Cal.App. 4th 1008, 1025. Indeed, the law makes clear that “reasonable attorney’s fees incurred or paid by a party for the common benefit” can be reimbursed by the … Continue reading

To recover attorney’s fees in a partition action to the maximum extent allowed by law (i.e., more than the fractional ownership interest of the defendant), plaintiffs should find special facts demonstrating the inequity of paying their own attorney fees, such as active wrongdoing toward co-owners and attempts to increase cost to other parties. To show that fees are for the common benefit, it is important to document that the partition action was required by the plaintiff due to the non-cooperation of the defendant(s). Conversely, to make sure you are not held liable for attorney’s fees, it is important to show that there were other issues that required the partition action.

Maximizing offsets is one way to win a partition action, but it requires careful documentation and clear accounting to persuade the court and opposing co-owners as to what will occur through the use of an experienced partition action lawyer.

Contact an Experienced Partition Attorney in California Today

There are many ways to become a co-owner of real estate, but unless all co-owners agree to sell, there is only one remedy under the law to end the co-ownership: a complaint for partition by sale. To ensure that a partition action proceeds smoothly given the unique complications in every case, and to maximize the recovery of offsets, co-owners should seek the advice of an experienced partition attorney in California. Talkov Law’s real estate attorneys can be reached at (844) 4-TALKOV (825568) or online.

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References

References
1 California Code of Civil Procedure 872.210
2 California Code of Civil Procedure 872.710(a)
3 Orien v. Lutz (2017) 16 Cal. App. 5th 957
4 Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.
5 Code Civ. Proc. § 872.710(a)
6 Code Civ. Proc. § 872.710(b)
7 Right of partition—In general, 4 Cal. Real Est. (Miller & Starr 4th ed.) § 11:14
8 California Evidence Code 662
9 Orien v. Lutz (2017) 16 Cal. App. 5th 957, 963
10 Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1036 (“Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each co-tenant’s interest. Credits include expenditures in excess of the co-tenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.”)
11 Lin v. Jeng (2012) 203 Cal.App. 4th 1008, 1025. Indeed, the law makes clear that “reasonable attorney’s fees incurred or paid by a party for the common benefit” can be reimbursed by the court.California Code of Civil Procedure 874.010(a)
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