Affirmative Defenses to a Partition Action in California

How Do You Beat a Partition Action?

Experienced partition attorneys in California are often asked whether there are affirmative defenses to a partition under California law. Of course, every defendant wants to win a partition action.

While some people may refer to these as affirmative defenses, it might be best to look them as ways to achieve a better outcome. If these strategies are played correctly, you may even be able to save your house and become the sole owner for as little as possible. Even if your house is sold, you may be able to maximize your return.

How to Stop a Partition Action

Forced Appraised Buyout under the Partition of Real Property Act (previously the Uniform Partition of Heirs Property Act)

The Partition of Real Property Act allows a forced appraised sale to the defendant, instead of a sale. While the Partition of Real Property Act is available to many co-owners of property, the previous version of this law, the Uniform Partition of Heirs Property Act, only applied to partition actions involving “heirs property” filed between January 1, 2022 and December 31, 2022. Both iterations of this bill enable the courts to order a new form of partition by appraisal in which a third party real estate appraiser determines the fair market value of the property. Non-partitioning parties can then purchase the property at that price if they so choose. By giving non-partitioning extra time and opportunity to purchase property from co-owner(s) who want to sell the property, the Act serves as a type of partition defense.

Request Determination of Offsets and Reimbursements

Sometimes, the partition action seeks to force the sale and have a partition referee determine offsets later, which is the most common method of operation in a partition. However, defendants may want the offsets to be decided first to make sure the plaintiff knows what they will likely receive.

The famous case of Wallace v. Daley (1990) 220 Cal.App. 3d 1028, 1036 explained as follows:

Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each co-tenant’s interest. Credits include expenditures in excess of the co-tenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.

Co-owners seeking to maximize their outcome from the partition action should keep careful records of the payments they made and the payments that the other co-owner did not make on property taxes, insurance coverage, mortgage payments, repairs, etc.

Challenging a Plaintiff’s Ownership Interest (Standing to Bring a Partition Action)

The requirement is that “A partition action may be commenced and maintained by…An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.” Code Civ. Proc. § 872.210(a)(2). The law is that any co-owner of the property has a right to partition under California law, unless the property is solely property of one marital community that must be raised through a dissolution of marriage via a family law attorney,

In some cases, the plaintiff is not a true owner of the property. Perhaps they were added to title (legal title) for a reason other than being a real owner (equitable title). Or, perhaps they are claiming to be an owner, but are not on title, meaning they are filing a quiet title action as part of the partition whereby they must show equitable ownership by clear and convincing evidence under Evidence Code 662. However, if the plaintiff does not hold an equitable interest in the property, whether on record title or off record title, the partition action is not proper.

Note that, contrary to common belief, there is no requirement that the parties bringing a partition action have the support of a majority of owners of the property.  Rather, an owner of just 1% of a property could bring a partition action. While defendants may not be pleased, partitions promote the alienability (ability to be sold) of property so that properties do not become owned by numerous owners who must reach an agreement to sell to just one owner.

Waiver of Right to Partition

A waiver of the right to partition is extremely rare and requires specific circumstances rarely seen in co-owned real estate. “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 (citing Code Civ. Proc. § 872.710(b) (“partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver”)); see, e.g., Pine v. Tiedt (1965) 232 Cal. App. 2d 734; American Medical International, Inc. v. Feller (1976) 59 Cal.App. 3d 1008, 1014.

Ordinarily, such a waiver would come about due to “an agreement among co-owners of property….” Orien v. Lutz (2017) 16 Cal. App. 5th 957, 963. However, such written agreements between co-owners of real property are rarely seen in California. Rather, most co-owners simply accept a deed placing multiple owners on title, then realize the complications of doing so later. Establishing this defense is possible, but a writing is going to go a long away.

Partition In-Kind, Lot Splits and ADU Sales

Under the concept of a partition in kind, some partitions result in the property being physically divided in accordance with the interests of the parties.

Historically, this was basically only an option for large properties where the interest of the co-owner could be satisfied with a division. For example, perhaps there is a house with a farm around it. The house might be worth 75% of the value, and the farmland might only be worth 25%. Thus, a 50/50 ownership likely could not be solved by granting one party the house, and the other party the farmland.

However, new laws in California are making the division of ordinary single family homes a possible solution to partition actions. Notably, SB 9 partition action lot splits may be a way to solve a co-ownership dispute by allowing the exiting co-owner to sell their interest while the other co-owner stays in possession of the property. Unfortunately, SB 9 was the product of great compromise such that it is not as user friendly as proponents had hoped.

Nonetheless, AB 1033 ADU sales in a partition action may become a more popular resolution to co-ownership disputes. Under this law, the ADU can be sold separately from the main residence. The sale of the ADU or the main residence may generate enough cash to pay off the co-owners looking to sell their interest, while allow the other co-owner to stay in possession of the remainder of the property.

Keep Recoverable Costs Low by Showing Cooperation with the Plaintiff, Referee, Realtor/Broker and Court in the Listing and Sale

If you’re hoping to defeat a partition, it is still important to show some level of cooperation with the plaintiff, the referee, any broker or Realtor hired to list the property for sale, and the court forseto any hearings. This will allow you to be in the good graces of these important parties in the process to the extent you wish to leverage your position as co-owner. It can also reduce the costs that may be apportioned to each of the co-owners after the sale.

Refinance the Property to Buy Out the Co-Owner

One of the most common ways to defeat a partition by sale is to buy out the other co-owner or co-owners. Generally speaking, to determine the amount that should be paid, first determine the likely value of the property, then deduct the costs of sale (perhaps 7% to 9%), then deduct any mortgages or liens on the property. From this amount, determine the percentage interest of each owner in the property to find their equity. Generally, buying out the interest of a co-owner involves obtaining a loan. This can be done by using an escrow to hold the deed from the other co-owners while the purchasing party deposits all the funds necessary. When the loan is funded, the escrow will pay the co-owner and record the deed. Of course, if you have the cash, you’re welcome to fund the escrow with cash. Otherwise, getting a loan with a friend or family member with good credit may help you receive a better rate and allow you to buy out your co-owner.

Bid at the Sale with a Credit Bid for the Co-Owner’s Equity in the Property

California law provides that “the court shall order sale by such methods and upon such terms as are expressly agreed to in writing by all the parties to the action.” Code Civ. Proc. § 873.600. It goes on to provide that: “The court may, at the time of trial or thereafter, prescribe such manner, terms, and conditions of sale not inconsistent with the provisions of this chapter as it deems proper for the particular property or sale.” Code Civ. Proc. § 873.610(a).

Accordingly, co-owners of a property hoping to save their home should request that the court allow overbidding at the hearing approving the sale so that the co-owner can outbid any third party.

The co-owner should also request that the co-owner be given credit for their one-half interest in the property, sometimes known as a credit bid. For example, if all parties agree that the co-owner will obtain $100,000 from the sale of the property, that co-owner should be able to bid the $100,000 they would otherwise receive. As a practical matter, that would mean that the co-owner who buys from the court would need a smaller loan to purchase the house. For example, if the purchase price is $300,000, and the co-owner has a credit bid of $100,000, they would only need to obtain $200,000 more to buy the house.

Code of Civil Procedure 873.770 CCP – Taking Setoff from Party Purchaser (Partition Actions)

Offsets Exceeding the Plaintiff’s Equity in the Property

Theoretically, if a co-owner can show that the plaintiff has no equity in the property, a court may be hesitant to allow a partition to go forward. Parties have the option to request an accounting on the property to be performed at the beginning of the lawsuit, thus allowing a defendant to show that  offsets exceed the plaintiff’s equity in the property under an assumed sale at fair market value. This would require certain facts that may only be present in certain cases.

Force Your Co-Owner to Take a Buyout in a Partition Action

If your co-owner thinks that a partition means you can’t buy them out, they’re wrong. A 998 offer in a partition action can help expedite the deal when offering buying out your co-owner. In essence, a 998 offer is a statutory offer to compromise developed with the goal of encouraging settlement between parties and shifting certain costs to the losing party. Our experienced partition attorneys can structure a court-ordered buyout in your favor. Indeed, partition actions can be the best-kept secret to getting rid of co-owners if you have the right guidance.

“Fairness” Is not a Defense to a Partition Action

The Court of Appeal has rejected various arguments that there is a “requirement of fairness” in partition actions. The mistaken “authority” for this claim is from the 1976 decision in American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1016 (“AMI”), which in turn cited to the 1972 decision in Penasquitos, Inc. v. Holladay (1972) 27 Cal.App.3d 356. Because several California courts have dismissed this argument, it is not a sufficient defense to partition.

Contact an Experienced Partition Attorney in California

The bottom line is that partition actions in California are complicated, meaning it is important to protect your rights to stop the effect of a partition action by contacting a real estate lawyer with experience in partition actions to determine the best course of action.

Talkov Law's Partition Attorneys Can Help

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. With seven, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 300 partition actions throughout California. Every case has resulted in a sale to either a third party or one of the co-owners. Not a single court has denied our clients the right to partition or declared our client to be a non-owner. Plus, for qualified cases, there is no fee until we settle or win your case!

If you're looking to end your co-ownership dispute, contact California's premier partition action law firm by calling Talkov Law at (844) 4-TALKOV (825568) or sending us a message today.

About Scott Talkov

Scott Talkov is a partition lawyer in California. He founded Talkov Law Corp. after more than one decade of experience at a California real estate litigation firm, where he served as one of the firm's partners. He has been featured on ABC 7, CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterprise, and in Los Angeles Lawyer Magazine. Scott has been named a Super Lawyers Rising Star for 9 consecutive years. He can be reached about new matters at info@talkovlaw.com or (844) 4-TALKOV (825568). He can also be contacted directly at scott@talkovlaw.com.

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