Can heirs property be sold in California under the Uniform Partition of Heirs Property Act?
Many people mistakenly believe that the Uniform Partition of Heirs Property Act prevents a property from being sold, but this isn’t the case. The Uniform Partition of Heirs Property Act in California gives non-partitioning parties (those who did not file the partition) additional opportunities to buy out the rights of the parties who did file the partition before a property is sold on the open market. Importantly, this does not entirely prevent parties from selling a property, but rather creates new opportunities for current owners to purchase the property. But first, to better understand whether heirs property can be sold, it is important to understand both the definition of heirs property as well as the Uniform Partition of Heirs Property Act in California.
What is heirs property?
Heirs property commonly occurs in one of two ways. Many people refer to heirs property as property in the name of a deceased former owner or their living trust as they have died. In those cases, the property will be distributed to the heirs of their estate through the probate court or beneficiaries under their trust by way of a deed from the successor trustee. This often results in fractional interests in property since many wills or trusts leave property, usually the decedent’s home, to many people, usually each of their children.
Under the Uniform Partition of Heirs Property Act in California, the term “heirs property” has a specific definition that applies only to property with multiple co-owners who obtained their interests from a relative, whether dead or alive. California Code of Civil Procedure (CCP) Section 874.312(e) in the Uniform Partition of Heirs Property Act defines heirs property as being property held in tenancy in common where:
(1) There is no agreement in a record binding all the cotenants which governs the partition of the property.
(2) One or more of the cotenants acquired title from a relative, whether living or deceased.
(3) Any of the following applies:
(A) Twenty percent or more of the interests are held by cotenants who are relatives.
(B) Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased.
(C) Twenty percent or more of the cotenants are relatives.
This means that heirs property includes properties obtained from intra-family transfers even whether the transferor is still alive.
Can heirs property be sold in California?
The Uniform Partition of Heirs Property Act in California gives heirs who wish to continue owning heirs property more opportunities to maintain possession of this property. In a normal partition action, any co-owner of a property may force the sale of the property. However, when a property is classified as heirs property, there are further actions that co-owners may take to preserve their ownership interest in the property by forcing a partition by appraisal of the property, which is not allowed for non-heirs property. Does this mean that heirs property cannot be sold? Not quite.
To recap, heirs are at risk of losing inherited property when one of the co-owners filed a partition action in California. The UPHPA affords heirs extra protections to ensure their the heirs property can be kept in the family if at all possible, i.e., if someone wants to buy out the fractional interest of the co-owner who files the partition. It doesn’t fully prevent the property from being sold, but gives an extra change to help retain ownership of the inherited property.
Note that California’s Uniform Partition of Heirs Property Act has been replaced by the Partition of Real Property Act effective January 1, 2023, which expands the Heirs Act to beyond just “heirs property.”
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 twelve, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 600 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 (877) PARTITION (727-8484) or sending us a message today.
