A co-owner who asks a California court to order a sale must prove with evidence that a sale is the right way to partition the property. In Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 366–369, the Court of Appeal identified two kinds of evidence that support a sale: proof that the property cannot be divided into parcels of equal value, or proof that physical division would materially reduce the value of an owner’s share. The plaintiff offered neither, so the court reversed the order for a sale and directed that the property be divided.
The case is a leading California decision on the evidence needed for partition by sale instead of partition in kind, and it shows what a plaintiff should prepare before asking for a sale.
Why Butte Creek Island Ranch v. Crim Matters
California law prefers physical division. California Code of Civil Procedure section 872.810 provides for division of the property in kind according to each owner’s interest, and California Code of Civil Procedure section 872.820 allows a sale when the co-owners agree or when a sale “would be more equitable” than division. Butte Creek explains what evidence makes a sale more equitable. (Butte Creek, at pp. 365–366.)
A wish to sell, or a wish to end up owning the whole property, does not meet that standard. The plaintiff has to show why a sale is the better outcome for the particular property.
The Facts: Two Co-Owners and a Butte County Duck Club
Butte Creek Island Ranch, a general partnership, and William H. Crim III each owned an undivided half interest in two parcels in the Butte Sink area of Butte County, a prime waterfowl area. The 40-acre northern parcel held a sleep house, a kitchen and dining building, a garage, a barn, and a landing strip, and it supported the waterfowl hunting on the 181-acre southern parcel. (Butte Creek, at pp. 361–362.)
Crim began visiting the property in 1948 as a boy and bought his half interest in 1970. The partnership acquired its half in 1978 and tried to buy Crim’s interest. When he declined to sell, the partnership filed for partition. (Butte Creek, at p. 363.)
A partition referee chosen by agreement of both sides recommended dividing each parcel into northern and southern portions, so that each owner received hunting land and support property with access easements over existing paths. The partnership first agreed that the proposed division of the hunting parcel was fair, then changed course and asked the court to sell the entire property. The trial court ordered a sale, and Crim appealed. (Butte Creek, at pp. 361, 363–364.)
How the Court of Appeal Reached Its Decision
Evidence That the Property Cannot Be Divided Equally
The first kind of evidence concerns whether the property can be divided fairly. The court explained:
“The first is evidence that the property is so situated that a division into subparcels of equal value cannot be made.”
Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 366
Equal value does not mean identical land. Showing that one part of a property is worth less than the whole does not count, because that is true in every partition, and neither does showing that the land is not uniform. The party seeking a sale must show that the land cannot be divided equally. (Butte Creek, at p. 366.)
The partnership could not do that. The referee found that the hunting parcel could be divided into two portions of about 90.5 acres each, and the partnership’s preference for controlling all 181 acres did not show that a fair division was impossible. (Butte Creek, at pp. 366–367 & fn. 1.)
The court pointed to a city lot as an example of land that truly cannot be divided equally. (Butte Creek, at p. 366.) In Priddel v. Shankie (1945) 69 Cal.App.2d 319, 326, the property was a 40-by-140-foot inside lot with two houses and three garages, and the Court of Appeal affirmed a sale because the lot could not be partitioned in kind without great prejudice to the owners.
Evidence That Division Would Lose Value
The second kind of evidence concerns the financial result of dividing the property:
“The generally accepted test in this regard is whether a partition in kind would result in a cotenant receiving a portion of the land which would be worth materially less than the share of the money which could be obtained through sale of the land as a whole.”
Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 367
The court called this a purely economic test. If the owner who wants a sale could sell the divided portion for as much as that owner’s share of a sale of the whole property, no economic harm exists. (Butte Creek, at p. 367.)
The partnership introduced no evidence that dividing the land would reduce its overall value. Because it asked for the sale, it carried the burden of producing that evidence. (Butte Creek, at pp. 367–368.)
Wanting the Whole Property Was Not Enough
The partnership planned to keep the land and acquire Crim’s interest through the sale, and its evidence showed only that owning all of the hunting parcel would be better for the partnership. The court held that a sale cannot be ordered just to advance one owner’s interests. Before ordering a sale, the court must find that it promotes the interests of all of the owners. (Butte Creek, at p. 368.)
With two equal co-owners who both wanted to keep the land, and no evidence of unequal division or lost value, the court held that ordering a sale was an abuse of discretion. (Butte Creek, at pp. 368–369.)
The Result: Physical Division Instead of a Sale
The Court of Appeal reversed and sent the case back with directions to divide the property in kind and complete that division. (Butte Creek, at p. 369.) The ruling changed the method of partition. The co-ownership still ended, because each owner received separate land.
What Butte Creek Means for California Co-Owners
- A plaintiff who wants a sale carries the burden of proving that a sale is more equitable than division.
- The proof is evidence about the property itself: whether it can be divided into equal parts, and whether a divided share would be worth materially less than a share of the sale price.
- A small lot with buildings on it, like the lot in Priddel, can be the kind of property that cannot be split into equal parcels. The court recognized that division can be impractical for urban property and impossible under some zoning restrictions. (Butte Creek, at p. 365.)
- Useful evidence includes an appraisal comparing the whole property’s value with the value of the parcels that division would create, along with lot size, access, zoning, and the placement of buildings.
- A co-owner who wants to keep the property has a separate route. See Buying Out a Co-Owner in California.
The Partition of Real Property Act and Butte Creek
Butte Creek was decided long before the Partition of Real Property Act, which took effect on January 1, 2023. In cases the Act governs, a co-owner who requested a sale that is not bought out through the buyout process in California Code of Civil Procedure section 874.317 faces a different test. Under California Code of Civil Procedure section 874.318, the court orders partition in kind unless, after weighing the factors in California Code of Civil Procedure section 874.319, it finds that division would cause great prejudice to the co-owners as a group.
The Butte Creek evidence about equal division and lost value still speaks to those factors, but the statutory test is now the one the court applies in those cases.
Build the Evidence for a Partition Sale
If your co-owner will not agree to sell, you do not need their consent to end the co-ownership, but you do need to show why a sale fits your property. When you are ready, you can file a partition lawsuit.
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 gathering the appraisal and property evidence through the referee’s sale and the final distribution of proceeds. Call (877) PARTITION (727-8484) today or contact us online to get started.
