If you are over 70 and co-own property you want sold, you may not have to wait years for a partition action to reach trial. Under Code of Civil Procedure section 36, a co-owner over 70 can ask the court for “trial preference.” If the court finds that your health makes a fast trial necessary to protect your interest, it must grant the request and set trial within 120 days.
California civil cases often take a year or more to reach trial. For an older co-owner, that delay can mean never seeing the proceeds of a property they spent decades paying for. Trial preference exists to prevent that.
What CCP 36 Says
CCP 36 has several kinds of preference. The ones that matter in a partition action are:
- CCP 36(a), for a party over 70 (mandatory). The court must grant preference if it makes two findings: (1) the party has a substantial interest in the case as a whole, and (2) the party’s health makes a preference necessary to keep their interest in the case from being harmed.
- CCP 36(d), for a serious medical condition (discretionary). At any age, the court may grant preference based on clear and convincing medical documentation that the party has an illness or condition raising substantial medical doubt that they will live beyond six months.
- CCP 36(e), for the interests of justice (discretionary). The court may grant preference whenever the interests of justice support it.
Once preference is granted, CCP 36(f) requires the court to set trial within 120 days. No continuance (postponement) past that window is allowed except for the physical disability of a party or attorney, or for good cause stated on the record. Each continuance is limited to 15 days, and each party gets only one continuance for physical disability.
Why Subdivision (a) Is So Powerful
The word “shall” in CCP 36(a) means what it says. In Fox v. Superior Court (2018) 21 Cal.App.5th 529, the Court of Appeal ordered a trial court to grant preference to an 81-year-old plaintiff and held that where a party meets the subdivision (a) standard, “preference must be granted.” (Id. at p. 535.)
Fox also made clear that:
- No doctor’s declaration is required. Under CCP 36.5, the supporting declaration can be signed by the party’s attorney, based on information and belief about the party’s diagnosis and prognosis.
- The question is not whether you will die before trial. Subdivision (a) says nothing about death or incapacity. The question is whether your health is such that a preference is needed to avoid prejudicing your interest in the case.
- The court does not balance the other side’s convenience. A co-owner who wants more time, or who says discovery is not finished, does not defeat a qualifying motion.
How Trial Preference Works in a Partition Action
A partition is a civil action, so CCP 36 applies like it does to any other lawsuit. A co-owner on title who is asking the court to sell or divide the property will usually have no trouble showing a “substantial interest in the action as a whole”: the case is about their property.
Timing. Under CCP 36(c), the motion may be filed once all essential parties have been served or have appeared. In a partition, that generally means every co-owner and anyone else named as a defendant. A party who turns 70 while the case is pending can file at any time.
What gets tried. The preference trial decides the issues that lead to the interlocutory judgment of partition: the right to partition, each co-owner’s share, and whether the property will be sold or physically divided. Because partition is an equitable action, those issues are decided by a judge, not a jury. The interlocutory judgment is the court’s order that the property be partitioned and how. Once it is entered, the court can appoint a referee to sell the property (see Is a Partition Referee Necessary in California?). Trial preference moves up the trial date. The referee’s sale then follows the normal court process described in Procedures in Partition.
Leverage. A trial date four months away changes the negotiation. A co-owner who has been stalling, hoping you will give up, suddenly has to decide whether to buy you out, agree to a sale, or go to trial. Many cases settle once a preference motion is granted.
When the Other Co-Owner Is Playing for Time
California law gives every co-owner the right to partition, so most defendants cannot stop a sale. A co-owner cannot even put off the sale to wait for a better market (De Roulet v. Mitchel). What some try to do instead is make it take as long as possible. The co-owner living in the house rent-free, or collecting the rent, has every reason to stretch the case out. And when the other owner is in their 70s or 80s, delay can feel like a strategy in itself.
Our older clients most often see delay in these forms:
- Avoiding service. A co-owner who will not answer the door can slow the start of the case (see How To File a Partition Action in California). Courts have other ways to complete service, and once every essential party has been served or has appeared, the preference motion can be filed.
- Asking for more time. Requests to move the trial date are routine in ordinary cases. After preference is granted, CCP 36(f) allows a continuance past the 120-day window only for a party’s or attorney’s physical disability or for good cause stated on the record, and only for up to 15 days.
- Saying discovery is not finished. The other side may argue it needs more time for discovery. Under Fox, unfinished discovery does not defeat a qualifying motion under CCP 36(a).
- Refusing every offer. Some co-owners simply wait, betting that an older owner will settle cheaply or not live to see trial. A trial date four months away takes that bet off the table. (More on this in What to Do When a Co-Owner Refuses to Sell in California.)
Trial preference does not end every source of delay, but it replaces an open-ended calendar with a fixed date that the court must keep.
Why Older Co-Owners Cannot Afford to Wait
For a co-owner in their 70s or 80s, a partition is usually about getting on with the next stage of life, not about winning an argument. The reasons we hear most:
- Paying for care or a move. The equity in a co-owned house is often the money for assisted living, in-home care, or a smaller home near family. It does no good locked in a property someone else is living in.
- Testifying while you can. In many partition cases, the older co-owner is the person who knows who paid the down payment, the mortgage and the repairs. That testimony matters most when it comes from you, in person.
- Not leaving a lawsuit to your heirs. A partition does not end when a party dies. Under Code of Civil Procedure section 377.31, the case can continue with your successor in interest or personal representative substituted in, which usually means probate, more delay and more cost for your family (see What Happens If Your Co-Owner Dies During a Partition Action?).
- Stopping the carrying costs. Many older co-owners keep paying their share of property taxes, insurance and the mortgage on a house they cannot use. Those payments can generally be credited back from the sale proceeds (Southern Adjustment Bureau v. Nelson), but every month of delay is still money out of pocket.
- Peace of mind. Years of conflict with a sibling, a former partner or a longtime friend take a real toll. A fixed trial date gives everyone a reason to finally settle.
One More Step If Title Is Held in Joint Tenancy
Trial preference speeds up the case, but it does not protect your share if you die before judgment. If you and your co-owner hold title as joint tenants, the survivor takes the whole property when one joint tenant dies, and a pending partition action does not change that by itself.
Under Civil Code section 683.2, a joint tenant can sever the joint tenancy alone, without the other owner’s consent, but the deed or written declaration must be recorded before the severing owner dies. For an older co-owner in joint tenancy, severing title and moving for trial preference often go together. See Riddle v. Harmon for how a joint tenant can deed the property to themselves to sever.
Who Should Consider a Preference Motion
Trial preference is worth discussing with your attorney if:
- You are over 70, or will turn 70 while the case is pending, and have health issues
- You have a serious diagnosis, at any age
- Your co-owner lives in the property, collects the rent, or otherwise benefits from delay
- The property is your main asset and you need the proceeds for care or retirement
Talk to a California Partition Attorney
Talkov Law focuses exclusively on partition, and we regularly represent older co-owners who cannot afford to wait years for their share. There are no fees until you win. To discuss whether trial preference can speed up your partition, schedule a free 30-minute consultation at [talkov-law-phone-number].
