3 Ways to Win a Partition Action

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How to Win a Partition Action in California

A partition action is the only court process in California to end disputes when parties are co-owners of real estate. Under California Code of Civil Procedure § 872.210, so long as a partition is found to be appropriate, the court must divide the real estate equitably among its co-owners, as explained in our Ultimate Guide to Partition Actions in California.

Our experienced real estate attorneys in California provide some of the tips and tricks to ensure that you are the winner in the partition lawsuit.

1) Forcing Your Co-Owner to Sell

Perhaps the biggest issue that arises in partition actions is forcing the co-owners to sell. There are 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 as there is no such requirement!

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

Indeed, courts have explained that, “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.” Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603. Another court found that, so long as “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 to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the cotenants will be promoted by refusing the application or temporarily postponing action, . . .’” Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325. In other words, the right to partition is absolute in California.

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.

2) Stopping a Partition Action in California 

If your co-owner has filed a partition lawsuit against you, it is important to understand that you have rights.

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.” 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. Ordinarily, a waiver of the right to partition is found in “an agreement among co-owners of property….” 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.

However, the most common way for a defendant to stop a partition is to buy the interest of the plaintiff. 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

3) Maximize Your Offsets

Finally, after the sale occurs, the court conducts an accounting where the proceeds are not always divided according to the percentage interests of the owners. Rather, if one owner can show that they have offsets, they may be awarded more than their fractional interest, while the other co-owner receives less.

For example, 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.” Lin v. Jeng (2012) 203 Cal.App. 4th 1008, 1025; see Code. Civ. Proc. § 874.010(a). To recover attorney’s fees in a partition action, plaintiffs must 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.

Even more commonly, offsets are owed for ordinary expenses paid only by one party, such as the mortgage, taxes, insurance and repairs. As Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1036 explained:

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.

There are many tricks to recovering offsets, but documentation of the expenses and an accounting prepared in line with the state of the law by an experienced partition attorney will be crucial. More information is available in our blog post on recovering costs in a partition action.

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.

We have partition lawyers in Los AngelesOrange CountySan DiegoPalm SpringsSan Bernardino, Riverside, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas.

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About Scott Talkov

Scott Talkov is a real estate lawyer, business litigator and bankruptcy attorney in California. He founded Talkov Law Corp. after one decade of experience with one of the region's oldest law firms, where he served as one of the firm's partners. He can be reached at (844) 4-TALKOV (825568) or scott@talkovlaw.com.

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