Form Complaint for Partition by Sale in California
If you co-own real estate in California, you know the headaches that can accompany the ownership of property by tenants-in-common or joint tenancy. Disputes often arise when owners disagree on the best use of the property. Perhaps one of the owners wants to sell, but the other one doesn’t want to?
These disputes between co-owners of property can be resolved through a partition action in California. Under California Code of Civil Procedure Section 872.210, a partition action is a legal process taken to divide real estate fairly among the co-owners. When there is disagreement in which one or more co-owners of a property may want to sell the property, but another co-owner does not agree to sell, a partition action can ensure the sale of the property with a division of the proceeds fairly and equitably among the joint owners.
California Complaint for Partition by Sale Template
Below is a form complaint for partition by sale in California that is intended to be used in consultation with a real estate attorney. Note that co-owners can consent to selling a property to a third party or to one or more of the co-owners as a settlement. Parties are often able to do so after consulting with a skilled partition action lawyer to strategize on an appropriate outcome.
***Please be aware that this form is for use in consultation with a real estate attorney. Attempting to represent yourself in pro per is a risk, and we highly advise working with a knowledgeable attorney. An experienced partition attorney will likely produce a more favorable outcome for you in your partition action.***
[Name or Name and Bar Number]
[Attorney for Plaintiff or Plaintiff In Pro Per]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF [NAME OF COUNTY WHERE THE PROPERTY IS LOCATED]
[Name of Plaintiff(s)]
[Name of Defendants], and Does 1-10, Inclusive,
VERIFIED COMPLAINT FOR PARTITION BY SALE OF REAL PROPERTY
(Unlimited Civil Complaint – Amount Demanded Exceeds $25,000)
Plaintiff alleges herein as follows:
- This is an action for partition by sale of the real property at [address of property], held equally as [joint tenants or tenants in common] by plaintiff[(s)] and defendant[(s)], with tenant-in-possession [name] having refused to voluntarily sell the real property in question or buy out the share of plaintiff’s interest. Accordingly, plaintiff has filed this complaint to have the real property partitioned by sale.
- The subject of this action is certain parcels of real property comprising a [single-family residence, commercial property, vacant land, etc.] within the County of [Name of County], State of California, commonly known as [Address], Assessor’s Parcel Number [APN] (the “Property”), consisting of the real property in the City of [Name of City], County of [Name of County], State of California, legally described as follows:
- Plaintiff [Name of Plaintiff] (“Plaintiff”) is an individual residing in [Name of County] County in the State of California, who presently holds a [indicate percentage of ownership, e.g., one-half] interest in the Property as a [describe method of holding title, e.g., joint tenant or tenant in common].
- Defendant [Name of Defendant] (“Defendant”) is an individual [residing at the Property] in Los Angeles County in the State of California, who presently holds a [indicate percentage of ownership, e.g., one-half] interest in the Property as a [describe method of holding title, e.g., joint tenant or tenant in common].
- Plaintiff does not know the true names and capacities of the defendants sued as Does 1 through 10, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff will amend this complaint to add the true names and capacities of these defendants when they are ascertained. Each of the fictitiously named Doe defendants claims a possessory or title interest in the Property.
- This Court has jurisdiction of this matter for the reason that the amount in question exceeds the jurisdictional minimum of the Court, exclusive of costs and interest.
- Venue is proper in this Court because the real property that is the subject of this action is located in this County.
TITLE TO THE PROPERTY
- On [Date], a grant deed transferring the Property from third parties to “[text from the deed]” was recorded in the Official Records of [Name of County] County as Instrument Number [number], a true and correct copy of which is attached hereto as Exhibit 1 and incorporated herein by reference.
- [Optional: On [Date], a grant deed transferring the Property from [Plaintiff or Defendant] to “[text from the deed]” was recorded in the Official Records of [Name of County] County as Instrument Number [number], a true and correct copy of which is attached hereto as Exhibit 2 and incorporated herein by reference.]
- Accordingly, as of the date of this complaint, Plaintiff alleges that [Plaintiff and Defendant] each hold a [e.g., one-half] interest in the Property.
- [Optional if Joint Tenancy: By executing the verification to this complaint, Plaintiff hereby severs the joint tenancy on the basis that the execution on this complaint constitutes execution of “a written instrument that evidences the intent to sever the joint tenancy” under Civil Code § 683.2(a)(2), thereby creating a tenancy-in-common for which this partition action is proper.]
ENCUMBRANCES OF RECORD ON THE PROPERTY
- On [date], a deed of trust encumbering the Property in favor of [lender] securing a promissory note in the principal sum of $[amount] was recorded in the Official Records of [Name of County] County as Instrument Number [number], a true and correct copy of which is attached hereto as Exhibit 2 and incorporated herein by reference (“Deed of Trust”).
- Plaintiff is informed and believes, and thereon alleges, that the principal sum due on the promissory note secured by the Deed of Trust as of the filing of this complaint is in the approximate sum of $[specify balance on mortgage].
- Plaintiff alleges that the Deed of Trust is the only recorded encumbrance on the Property.
VALUE OF AND EQUITY IN THE PROPERTY
- Plaintiff alleges that value of the Property is approximately $[specify value of property], which exceeds the encumbrance[s] on the Property after costs of sale.
RIGHT TO PARTITION IS ABSOLUTE
- “Ordinarily, 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 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; see Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.
- Plaintiff alleges that, as a tenant in common and/or joint tenant, Plaintiff’s right to partition the Property is absolute.
[OPTIONAL: THIS ACTION HAS BEEN REQUIRED DUE TO DEFENDANT’S REFUSAL TO COOPERATE]
- [Optional: Before filing this action, Plaintiff requested that Defendant pay Plaintiff the equity in the Property proportionate to Plaintiff’s ownership interest. However, as of the date of this complaint, the Defendant has not agreed to do so. Accordingly, this action was filed.]
FIRST CAUSE OF ACTION
(Partition by Sale of the Property – Against All Defendants)
- Plaintiff incorporates the allegations above as though fully set forth herein.
- Partition by sale is the more equitable remedy than division in kind for the Property. The Property is an improved [single-family residence, commercial property, etc.] making a division in kind unfeasible as the co-owners would receive an interest valued at a price materially less than the share of proceeds the co-owners would receive through the sale of the Property as a whole, thereby resulting in a loss to the co-owners.
- This action for partition is brought for the common benefit of the parties, to preserve and secure to each of them their respective interest and rights in the Property. Pursuant to C.C.P. § 874.010(a), Plaintiff has and will incur the costs of the partition by sale of the Property, including reasonable attorneys’ fees incurred by the Plaintiff, for the common benefit of the parties, in an amount according to proof, which shall be allocated to the parties according to their ownership interests in the Property. See Code Civ. Proc. § 874.040.
- If any defendants do not assist with the orderly sale of the Property, Plaintiff will seek equitable relief by way of a court order requiring said defendants to vacate the Property and remove any personal belongings, including the appointment of a referee under Code of Civil Procedure § 873.010 to prepare the Property for marketing, and to market and sell the Property with approval of this Court. In such event, Plaintiff will request that the referee’s fees as well as the attorney’s fees be deducted entirely from the proceeds of the non-cooperative defendant(s) in an amount according to proof with statutory interest thereon at a rate of ten percent per annum. See Code Civ. Proc. § 874.040 and 874.030.
- Plaintiff requests a court order disbursing the proceeds of sale of the Property upon consideration of an allowance, accounting, contribution, and other compensatory adjustments among the parties according to the principles of equity under Code of Civil Procedure §§ 140, 873.820(d), and 873.820.
WHEREFORE, Plaintiff prays for judgment against all Defendants as follows:
- For partition by sale of the interests in the Property according to the respective rights of the parties hereto;
- That the costs of partition, and of this action, including reasonable attorneys’ fees expended by Plaintiff for the common benefit, fees and expenses of referees and/or agents, and other disbursements be ordered paid by the parties in accordance with their respective interests in the Property, that the costs and attorneys’ fees be included and specified in the judgment and become a lien on the respective interests of any non-cooperative defendant(s) in an amount according to proof at time of trial, and that the referee’s fees be included and specified in the judgment and become a lien on the respective interests of any non-cooperative defendant(s) in an amount according to proof at time of trial with statutory interest thereon at a rate of ten percent per annum;
- That an order of disbursement be made according to an allowance, accounting, contribution, and other compensatory adjustments among the parties according to the principles of equity;
- For equitable relief to change the locks, thereby excluding any non-cooperative defendants and any other individuals with keys to the Property, including their personal belongings, in the event of their non-cooperation with the orderly sale of the Property;
- For costs of suit incurred herein; and
- For such other and further relief that the court may deem just and proper.
[Attorney for Plaintiff or Plaintiff in Pro Per]
Sample Complaint in California Partition Action [Draft]
As a courtesy, we are providing this partition action complaint in Microsoft Word format for use only in consultation with or when represented by an attorney. Click here for a Word format Partition Action Complaint California Sample.
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.
Notice: Please contact an attorney to advise you of your rights upon an assessment of the facts in your case before using this template because the ramifications can be significant if you do not properly assert your rights in a California partition action.
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