Can I File a Partition Action?

Am I Entitled to a Partition?

California law generally allows any co-owner of a jointly owned property to force the sale of the property through a partition action. Partition actions are so favorable to public policy that the “right to partition is absolute.” ^[1]Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.

However, there are a few important exceptions to this rule. The experienced partition attorneys at Talkov Law have created this list of the most common reasons a partition action may not be a proper legal remedy to a co-ownership dispute.

Prior to filing a partition, ask yourself the following important questions:

Is There a Waiver?

Although extremely rare, California Code of Civil Procedure 872.710 provides that “partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.” Indeed, “A co-owner of property has an absolute right to partition unless barred by a valid waiver.” ^[2]Orien v. Lutz (2017) 16 Cal.App.5th 957, 962.

If such a waiver were to exist, it would most likely be found in writing, presumably in a co-ownership agreement (sometimes known as a tenants-in-common (TIC) agreement) though most co-owners do not have such an agreement. 

Is the Property Community Property?

A partition action is not available to property that is community property (i.e., property purchased during the course of a marriage). Division of community property falls within the family courts and is best handled by a family law attorney with experience in property division. ^[3]Code of Civil Procedure § 872.210(b)

Are You an Co-Owner of the Property?

To obtain a partition, the court must find that you are a co-owner of the property.^[4]Code of Civil Procedure § 872.720 Usually, this would mean your name is found on a grant deed, quitclaim deed, probate judgment distributing the property, or other document recorded in the county recorder. Sometimes, there is an unrecorded document like a affidavit of death of trustee or otherwise that can be recorded by a partition attorney before filing the case. If your name is not on such documents, then the action would likely raise issues of quiet title, which can be raised in a partition action. Some cases involving trusts raise issues that may be better addressed in probate court, while others can be raised in a partition action.

Contact a Partition Attorney to Determine Your Rights

The issues above represent some rare exceptions to the general rule that a co-owner can file a partition action. A real estate attorney with extensive experience in partition actions will be able to evaluate your unique circumstances and provide helpful insight.

Contact an Experienced Partition Attorney in California

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our knowledgeable partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15-minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568), email us at info(at)talkovlaw.com, or fill out a contact form online. Contact Talkov Law today to find out how you can pay nothing today and have your legal fees paid from the proceeds of sale of your property!