Answer to a Partition Action Complaint in California
When an action for partition is filed, the opposing party has an opportunity to respond to this action by filing an answer. An answer to a partition action is a pleading by the defendant in response to the plaintiff’s complaint for partition.
In the answer, defendants have an opportunity to address the allegations contained in the plaintiff’s partition action complaint. If the partition complaint is verified, each paragraph in the complaint must be addressed in the answer. Defendants can admit the allegations, deny the allegations, claim they have insufficient knowledge to admit or deny the allegations, or object to allegations by giving a reason for the objection.
Partition Action Answers – Affirmative Defenses to Partition Actions
Objections are usually followed by alleging one or multiple affirmative defenses to a partition action. Plaintiffs may have stated the facts incorrectly in their partition complaint, or there may be an explanation for plaintiffs’ allegations.
Waiver of Right to Partition in Partition Answer
Furthermore, if the right to partition the property has been waived, this waiver to partition should be addressed in the partition answer to prevent further costly proceedings. As one court explained: “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. Waiver is exceedingly rare in co-ownership agreements in California, so if one exists, it is important to address this as soon as possible. There are different perspectives on whether waiver is an affirmative defense to a partition of whether the lack of waiver is an element of the the plaintiff’s partition action.
Lien Claims in Partition Answer
Answers to partition complaints are also required to set forth claims of liens on the property. Code of Civil Procedure 872.420.
Claims for Compensatory Adjustments (Offsets) in Partition Answer
The partition statutes in California also require that answers specify claims for monetary compensation by any defendant in a partition answer. California Code of Civil Procedure § 872.430 sets forth that: “The answer may set forth any claim the defendant has for contribution or other compensatory adjustment.” The Law Revision Commission Comment explains that this section “avoids the need of the defendant to file a cross-complaint for affirmative relief” when alleging a claim for contribution or other compensatory adjustment to paid from the proceeds of sale of the property being partitions under Code of Civil Procedure 872.140.
Contact an Experienced Partition Attorney
Drafting an answer to a partition complaint that is as successful as possible requires the insight of an attorney. We highly recommend connecting with an experienced partition lawyer who has extensive knowledge drafting answers in partition actions.
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