Absolute Right to Partition in California

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One of the most common questions raised by co-owners of real property in California is how to force the sale of the property when the co-owners do not agree. California Code of Civil Procedure Section 872.210 allows a co-owner to sell co-owned property, even if the other co owner does not consent to the sale, using the legal process known as a partition action. The highly experienced partition attorneys at Talkov Law explain the only way to obtain the equity in a co-owned property is through a partition action.

Indeed, having a co-owned property in which all co-owners are in unanimous agreement of what to do with the property is certainly the easiest situation. However, it is not uncommon for co-owners, known in the law as a co-tenant (tenant-in-common or joint-tenant), to disagree on whether to keep or sell a property. A common scenario is when one party wants to sell while the other wants to keep the property. So, can a co-owner who wants to sell a property need the consent of the other co-owner(s)? The short answer is no – California courts have established that consent by co-owners is not required to force the sale of a property because the right to partition is absolute.

California Law is that Co-Owners Have an “Absolute” Right to Partition

Even the leading treatise on California real estate law, Miller & Starr, explains under the heading “Absolute right to partition” that “each cotenant has an ‘absolute’ right to partition the common property.” Right of partition—In general, 4 Cal. Real Est. § 11:14 (4th ed.). One court 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.”[1]Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.

One treatise on California law explains the issue as follows: “Ordinarily, therefore, if a party seeking partition is shown to be a tenant in common or a joint tenant, the right [to partition] is absolute and cannot be denied, either because of any supposed difficulty or on the suggestion that the interests of the cotenants will be promoted by refusing the application or temporarily postponing the action. The only indispensable requirement is that a clear title be shown, and in no event is a partition to be denied because it might result in financial loss to the cotenants.” 48 Cal Jur Partition § 36.

Yet another California Appellate Court explained that: “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, . . .’”[2]Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.

Recently, the California courts made clear 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

The effect of California law on the right to partition is that no consent is needed to sell a jointly-owned house or other property through a partition action.

Is disagreement between parties a requirement?

The right to partition does not require infighting among the co-owners. For example, an ex-husband can file a partition action even if he has an entirely-amicable relationship with his ex-wife, so long as they are co-owners of the property. Generally, partition actions involve parties who are or were very close, such as family (or former family), intimate partners (or formerly-intimate partners), and close friends (or formerly close friends). Indeed, parties would rarely end up as co-owners unless they did so voluntarily, based on trust existing at the time, or involuntarily, based on a trust, will, divorce decree or otherwise creating the co-ownership.

Further, the right to partition does not depend upon the hardship that a partition may cause to the tenant-in-possession (co-owner-in-possession). For example, an ex-wife can file a partition action that may cause the sale of the house occupied by her ex-husband, a co-owner of the property, even if the ex-husband may have no where else to live. One reason for this is that the ex-husband is welcome to be the highest bidder for the property. To the extent the tenant-in-possession is not the highest bidder, the tenant-out-of-possession should not receive diminished profits from the sale because of the hardship it may cause the tenant-in-possession, who can only offer a diminished sum. To prevent problems caused by a tenant-in-possession who would prefer that the property not be marketed for sale, an experienced partition attorney should request that the court take appropriate action if the tenant-in-possession fails to fully cooperate with an orderly sale of the property.

Does majority rule in forcing the sale of co-owned real estate?

One myth that frequently circulates is that only the majority owner of a property can force the sale of a single property with multiple owners. However, this is completely false. Any owner with a fractional interest in a property can force the sale of that property whether they own 99% or 1% of the property. Often, this claim that a majority is required is raised by the co-owner in possession who seeks to remain in possession without compensating the co-owners. The claim is wrong, but allows the co-owner in possession to delay the sale of the property by confusing the other co-owner(s).

In large part, the law allows this because it is extremely difficult, if not impossible, to successfully market a fractional interest in real property. Few, if any, buyers will want to purchase this partial interest in a property and become a co-owner with the remaining co-owners. Allowing a co-owner to force the sale of jointly owned property, no matter the interest that co-owner has in the property, ensures a higher level of fairness for all co-owners of real property.

Exception to the Right of Partition – Community Property

One limitation to this absolute right of partition is that it does not apply to property a married couple owns as joint tenants, known as community property. Division of community property must be addressed in family court, not by way of a partition action. 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. Indeed, the law is that “an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under” the partition statutes.[4]California Code of Civil Procedure Section 872.210(b)

Exception to the Right of Partition – Waiver of Right to Partition

The impact of Section 872.710 is that: “A co-owner of property has an absolute right to partition unless barred by a valid waiver. (Code Civ. Proc., § 872.710, subd. (b).) ‘[T]he right of partition may be waived by contract, either express or implied.’ (American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014, 131 Cal.Rptr. 270.) ‘An agreement giving rights of first refusal to the other tenants implies an agreement not to bring a partition action in lieu of a sale to the cotenants.’ (Harrison v. Domergue (1969) 274 Cal.App.2d 19.)” [5]LEG Invs. v. Boxler (2010) 183 Cal.App. 4th 484, 493. “The right of a cotenant to have the property in which he owns an interest partitioned is ordinarily absolute. However, that right may be … Continue reading

For example, one recent decision explained that: “Because the otherwise absolute right to partition may be waived by contract, the wise drafter of an agreement among co-owners of property will include language making clear no such waiver is intended. To do otherwise risks a later judicial finding that the parties have impliedly waived their right to partition by virtue of other contractual provisions.”[6]Orien v. Lutz (2017)16 Cal.App. 5th 957, 962–63

Indeed, there are very few California cases in which the right to partition was waived. This is likely because most parties simply buy a property together without any written agreement, so the odds that there is waiver of the right to partition is generally quite low. Each of these rare cases denying partition falls far outside the general fact pattern of co-owned real estate and actually strengthens the argument that the right to partition is absolute in California.

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: a complaint for partition by sale. To ensure that a partition action proceeds smoothly given the unique complications in every case, co-owners should seek the advice of an experienced partition attorney in California.

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 Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.
2 Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.
3 Orien v. Lutz (2017) 16 Cal. App. 5th 957
4 California Code of Civil Procedure Section 872.210(b)
5 LEG Invs. v. Boxler (2010) 183 Cal.App. 4th 484, 493. “The right of a cotenant to have the property in which he owns an interest partitioned is ordinarily absolute. However, that right may be waived or altered by agreement.” Harrison v. Domergue (1969) 274 Cal.App. 2d 19, 21. Said another way: “While it is the general rule that a cotenant may require a partition of the cotenancy as a matter of absolute right, this right may be modified or waived by contract, either expressly or by implication.” Schwartz v. Shapiro (1964) 229 Cal.App. 2d 238, 253.
6 Orien v. Lutz (2017)16 Cal.App. 5th 957, 962–63
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