An interlocutory judgment of partition closes the first phase of a California partition case. You obtain it by proving your right to partition and each co-owner’s share, often by motion rather than trial.
Clear and convincing evidence is a higher standard than a preponderance of the evidence. California Evidence Code section 662 requires it before a court will disregard how a deed holds title, which often decides each co-owner’s share in a partition.
Family Code section 2108 lets a family court order a sale before judgment only for good cause. When you co-own with a divorcing couple, a partition action is often the more powerful way to force a sale.
California Probate Code section 11953 requires that estate property be divided so each beneficiary receives value equal to their share, and allows a sale when a fair division is not possible.
A common myth is that an oral agreement can prevent a joint tenancy from being severed. California law is clear that it cannot, just as an oral agreement cannot create a joint tenancy.
Under the Partition of Real Property Act, a waiver of partition generally must be in a written record. Whether a co-owner can still argue the right was waived by conduct remains an open question.
A sale of property co-owned with a married couple can be forced through a partition action by any co-owner, or through joinder in the family law case if the couple is divorcing.
A life estate must be in writing to be enforceable in California. A verbal promise that someone can live in a property for life does not create a legal life estate.
A co-owner who paid more than their share for the down payment, mortgage, repairs, or taxes can seek reimbursement in a partition. Here is the evidence the referee needs to calculate offsets.
In California, past consideration cannot support an enforceable contract. That matters in partition cases when a co-owner tries to recast a past gift as a loan, a common issue in family and ex-partner disputes.
Co-owners who want to reinvest partition sale proceeds through a section 1031 exchange can run into trouble when the court or referee holds the funds after closing. Here is how to plan for it.
Partition lawyers need to know trusts and probate, family law, property tax, accounting, and more. These six secondary sources help.
Partition is an absolute right for California co-owners, but it can be waived. Here is what makes a waiver valid and how to plead it when enforcing the waiver in court.
When a California divorce is filed, automatic temporary restraining orders limit what spouses can do with property. Here is whether a spouse can still sever a joint tenancy, and how that affects partition.
Most co-owners know valuation matters when one co-owner buys out another. Under California’s Partition of Real Property Act, it also shapes how the sale is run and how the proceeds are divided.
Partition actions can be costly. California’s Partition of Real Property Act guides how those costs are shared among the co-owners, based on fairness and each case’s circumstances.
Partition accounting tracks costs, contributions, and reimbursements. One common mistake, double counting, can make the final judgment unfair if no one catches it.
Co-owners often disagree with the court about how property should be appraised under the Partition of Real Property Act. Code of Civil Procedure section 874.316 sets the rules for fair market value.
A cross-complaint for declaratory relief can clarify the parties’ rights in a partition action. But its value is limited for ownership disputes, since ownership is already at issue in every partition.
When defendants ignore a partition summons and complaint, the plaintiff can get a default judgment ordering the property partitioned, usually by sale.
A recorded judgment lien follows co-owned property into the hands of a buyer, but a transfer made before the lien was recorded may leave nothing to attach. Here is how the rules work.
Code of Civil Procedure section 872.510 requires the plaintiff to name everyone with a recorded or known interest. Here is whether that includes the lender.
A section 998 offer lets a co-owner pressure the other side to settle a partition action, because a co-owner who refuses and does worse at trial can be made to bear more of the costs.
A demurrer challenges a pleading that does not state facts sufficient for a claim. Here is how the sham pleading doctrine and truthful pleading requirement affect demurrers.
Most partitioned properties are single-family homes, so a sale has been nearly certain. A law allowing accessory dwelling units to be sold separately could change that.
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Practical guides from attorneys who focus exclusively on California partition actions.
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