In California, co-owners have an absolute right to partition: any co-owner can end the co-ownership through a partition action, even if the other co-owners do not consent. Under California Code of Civil Procedure section 872.210, any co-owner may file, and under California Code of Civil Procedure section 872.710(b), partition “shall be as of right unless barred by a valid waiver.” That is how a co-owner can force the sale of jointly owned property when the co-owners do not agree. The partition attorneys at Talkov Law explain what the absolute right to partition means, its two narrow exceptions, whether a court can deny partition because of something you did, and what the Partition of Real Property Act changed.
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 cotenants (tenants in common or joint tenants), 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, does a co-owner who wants to sell need the consent of the other co-owners? The short answer is no. California courts have established that consent by co-owners is not required to partition a property by sale 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.” 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…’” Priddel v. Shankie (1945) 69 Cal.App.2d 319, 325.
“It is . . . the accepted doctrine of the more recent authors upon the subject as well as of the appellate courts of this state that a cotenant is entitled to partition as a matter of absolute right; that he need not assign any reason for his demand; that it is sufficient if he demands a severance; and that when grounds for a sale are duly established it may be demanded as of right. To grant it is not a mere matter of grace.” De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 123–124.
In 2017, the Court of Appeal confirmed that “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.
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. A real estate agent can even list a property with only one co-owner’s signature, but only a court order in a partition action can sell the whole property without the other co-owners.
Do Co-Owners Have to Disagree Before Filing a Partition Action?
No. In De Roulet, the court explained at page 124 that a co-owner “need not assign any reason for his demand” and that “[t]he only indispensable requirement to its award is that a clear title be shown.” Indeed, 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 nowhere else to live, because a co-owner who lives in the house cannot refuse to sell on that basis. 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 the Majority Owner Decide Whether Co-Owned Real Estate Is Sold?
One myth that frequently circulates is that only the majority owner can force the sale of a property with multiple owners. However, this is completely false, and a minority owner can still file when the majority owner refuses a partition. 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 the absolute right to partition is that spouses cannot use a partition action to divide their community property. That division belongs in family court, as our post on Family Code section 2108 and partition explains. The bar applies only between spouses, so a relative or other co-owner who holds title with a married couple can still file a partition action. 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. California Code of Civil Procedure section 872.210(b).
Exception to the Right of Partition – Waiver of Right to Partition
The impact of California Code of Civil Procedure section 872.710(b) 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.)” LEG Investments 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.
In Orien, the Court of Appeal advised that: “Because the otherwise absolute right to partition may be waived by contract [citation], 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.” (Orien, 16 Cal.App.5th at pages 962–963.)
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 of an accidental waiver of the right to partition are 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.
The Partition of Real Property Act Did Not Take Away the Absolute Right to Partition
The Partition of Real Property Act, California Code of Civil Procedure sections 874.311 to 874.323, governs partition actions filed on or after January 1, 2023. Under California Code of Civil Procedure section 874.313, it applies to every action to partition real property unless all of the co-owners otherwise agree in a record. It replaced the Uniform Partition of Heirs Property Act, which governed only cases filed in 2022.
The Act does not let a co-owner block a partition. It changes how the property is valued and sold:
- The court determines the property’s fair market value, usually through an appraisal, under California Code of Civil Procedure section 874.316.
- If a co-owner requests partition by sale, the co-owners who did not request a sale may buy that co-owner’s interest at the determined value, under California Code of Civil Procedure section 874.317.
- If the property is sold, the sale is generally an open-market sale through a licensed real estate broker, under California Code of Civil Procedure section 874.320.
Either way, the co-owner who wants out is paid the value of their share. Filing alone does not open the door to a buyout, as we explain in whether a co-owner can buy you out after you file for partition. Because the Act turns on what the co-owners agreed “in a record,” it also bears on waiver of partition under the Partition of Real Property Act.
Fairness Is Not a Defense to Partition
Defendants sometimes argue that a court should deny partition because a sale would be unfair to them. The “fairness” defense to partition comes from American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, which was decided under the former partition statute. The Legislature enacted California Code of Civil Procedure section 872.710(b) the same year, providing that partition “shall be as of right unless barred by a valid waiver,” and the Court of Appeal has since explained that Feller does not address section 872.710. California courts described the right to partition as absolute long before that, as Priddel shows.
Can the Court Deny Partition Because of Something I Did?
In almost every case, no. No California law takes away a co-owner’s ownership, or their right to partition, because of bad behavior. A co-owner who has a restraining order against them, or who has been accused of domestic violence or of verbal or physical abuse, still owns their share and can still file a partition action. A restraining order can change who lives in the house, as we explain in whether a restraining order can remove a co-owner from the house, but it does not change who owns the property or the right to have it partitioned.
Unclean Hands Is a Narrow Defense
Because partition is an equitable remedy, a defendant will sometimes claim the plaintiff has “unclean hands,” meaning the plaintiff acted so improperly that the court should refuse to help. The doctrine is narrow. As the Court of Appeal has explained, “The misconduct that brings the unclean hands doctrine into play must relate directly to the cause at issue.” Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 979.
Bad behavior that has nothing to do with the property does not stop a partition. If a defendant says the plaintiff cheats at poker or behaved badly during the relationship, that is unrelated to the co-ownership. A claim that the plaintiff cheated the defendant out of their share of the property is different, but it is really a question of whether the plaintiff owns an interest at all, which every plaintiff must show to obtain an interlocutory judgment of partition (the court’s order that the partition will go forward). An unclean hands defense pleaded without supporting facts can also be challenged as a boilerplate affirmative defense.
Enforce Your Absolute Right to Partition With Talkov Law
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. Because the right to partition is absolute, the real questions are how the property is sold and how the proceeds are divided. None of the partition actions Talkov Law has handled has been denied.
Talkov Law can help. With 12 full-time partition attorneys and experience in over 650 partition actions throughout California, our team handles every step of the process, from filing through the referee’s sale and the final distribution of proceeds. Call (877) PARTITION (727-8484) today or contact us online to get started.
