Can my co-owner contest a partition?
When one co-owner wants to initiate a partition action, a common concern that we hear as partition attorneys is whether the other co-owner can contest the partition. The short answer is that your co-owner can contest anything they want; the real issue is whether they will succeed. In some ways, a partition is like a divorce – the court will let you out of the relationship, absent something highly unusual. In a partition action, you are entitled to force the sale of jointly owned property unless barred by a valid waiver. Your co-owner may raise affirmative defenses to a partition action, but there is no guarantee that any of these arguments will succeed and you will still likely win the partition action. Indeed, California courts have repeatedly demonstrated that partition is an equitable remedy for any co-owner who wishes to end their co-ownership relationship.
Partition is absolute in California
Multiple California courts have determined that a co-owner’s right to partition is absolute. One court explained that “if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right is absolute.”Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603. One California Appellate Court explained that: “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the cotenants will be promoted by refusing the application or temporarily postponing action, . . .’”Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325. Indeed, 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. In short, a co-owner of record is entitled to a partition action.
Affirmative defenses to a California partition action
Because the right to partition is absolute, this creates complications for defendants who wish to stop or delay the partition process. There are a few affirmative defenses to partition that may help in defending a partition action. Beginning on January 1, 2023, the Partition of Real Property Act goes into effect. This allows co-owners of real property to effectively order a partition by appraisal, allowing non-partitioning co-owners additional time and opportunities to buy out their co-owner.
Another common option is to buy out the partitioning co-owner without the added ordeal of ordering a partition by appraisal. Not only will this relieve both parties of litigating the partition action, it also allows the defendant to remain in the home and buy out the partitioning party’s interest. Additionally, having a written waiver to partition would serve as a valid defense to a partition action. California Code of Civil Procedure Section 872.710(b) states that: “Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver.” Check out our blog post on affirmative defenses for a more detailed list of Affirmative Defenses to a Partition 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 six, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled 250 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!