Manner of Partition Actions (By Sale, In Kind, & By Appraisal)

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California law provides for 3 distinct types of partition actions: 1) Partition by Sale, 2) Partition in Kind, and 3) Partition by Appraisal.[1]California Code of Civil Procedure 872.810872.840 By far the most common form is a partition by sale, followed by a partition by division (in kind) and a partition by appraisal.

As one court explained the manners of partition in California:

The manner of partition may be “in kind”—i.e., physical division of the property (see, e.g., Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 365, 186 Cal.Rptr. 252 (Butte Creek))—according to the parties’ interests as determined in the interlocutory judgment. (§ 872.810; see § 873.210 et seq.) Alternatively, if the parties agree or the court concludes it “would be more equitable,” the court may order the property sold and the proceeds divided among the parties. (§ 872.820; see § 873.510 et seq.) The third option, “[w]hen the interests of all parties are undisputed or have been adjudicated,” and the parties agree (§ 873.910), is partition by appraisal. (See § 873.910 et seq.)[2]Cummings v. Dessel (2017) 13 Cal. App. 5th 589, 597

Each type of partition provides benefits and drawbacks.

Partition by Sale

Most partition actions filed in California are resolved by a partition by sale.[3]California Code of Civil Procedure 873.510 A partition by sale is a court-ordered judgment forcing the sale of a jointly owned property. Co-owners will receive their equitable proceeds of the property from the sale, minus any offsets. A partition by sale allows co-owners with any percentage of interest in a property to force the sale and ultimately unlock their proportion of the value in the property.

Partition in Kind

Partition in kind, also known as a partition by physical division, occurs when a property is physically divided and distributed proportionally among its co-owners.[4]California Code of Civil Procedure 873.210 A partition in kind is used primarily with vacant land in which there are equitable portions that can be distributed. Difficulty in physically dividing a property with a structure, such as a home, make partition in kind unsuitable in many partition cases. Factors such as oil reserves, easements, or fertile land can affect the land from being divided evenly, making a partition in kind a relatively rare occurrence.

Partition by Appraisal

Partition by appraisal occurs when one party wants to keep a property, while the other party(ies) agree to sell.[5]California Code of Civil Procedure 873.910 The party that wishes to maintain ownership of the property agrees to buy out the other party’s interest. A third party will appraise the home and determine its value, thereby establishing the value of the property that each party is entitled to. Unlike partition by sale or partition in kind, a partition by appraisal is not forced. A partition by appraisal must be agreed upon by all parties that have an interest in the property. Since the parties must agree to a partition by appraisal, they rarely require court oversight, making this the least common manner of partition.

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) 482-5568 or fill out a contact form online.

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References

References
1 California Code of Civil Procedure 872.810872.840
2 Cummings v. Dessel (2017) 13 Cal. App. 5th 589, 597
3 California Code of Civil Procedure 873.510
4 California Code of Civil Procedure 873.210
5 California Code of Civil Procedure 873.910
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