California Code of Civil Procedure 872.210 is the California partition statute that specifies who is authorized to commence a partition action, concluding that all co-owners of real property can file a partition unless the property is marital community property. The statute provides that:
(a) A partition action may be commenced and maintained by any of the following persons:
(1) A coowner of personal property.
(2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.
(b) Notwithstanding subdivision (a), an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.
California Code of Civil Procedure 872.210
Code of Civil Procedure 872.210(a)(2) means that Co-Owned Properties can be Partitioned
Although section 872.210 is cryptically worded, the Court of Appeal explained its meaning as follows: “A co-owner of real or personal property may bring an action for partition. (Code Civ. Proc., § 872.210.)” Cummings v. Dessel (2017) 13 Cal.App.5th 589, 596 (quoting LEG Investments v. Boxler (2010) 183 Cal.App. 4th 484, 493). Indeed, the Law Revision Commission Comment to section 872.210 makes clear that: “Under subdivision (a)(2), where property is owned by several persons, whether or not they are joint tenants or tenants in common, partition is available to sever their interests.” This means that a co-owner holding any percentage interest in the property may file a partition action.
The impact of this section is that: “The right of a cotenant to have the property in which he owns an interest partitioned is ordinarily absolute. However, that right may be waived or altered by agreement.”[1]Harrison v. Domergue (1969) 274 Cal.App. 2d 19, 21 Indeed, California courts have established that “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
Generally, in a partition action, consent among co-owners is not required to file a partition action, thereby establishing that the right to partition is absolute. “A tenant in common has an absolute right to partition.” [3]Formosa Corp. v. Rogers (1951) 108 Cal.App. 2d 397, 409
However, waiver to partition as described in California Code of Civil Procedure 872.710 is a rare exception to the rule that the right of partition is absolute. The impact of Section 872.710 is that: “A co-owner of property has an absolute right to partition unless barred by a valid waiver. (Code Civ. Proc., § 872.710, subd. (b).) ‘[T]he right of partition may be waived by contract, either express or implied.’ (American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014, 131 Cal.Rptr. 270.) ‘An agreement giving rights of first refusal to the other tenants implies an agreement not to bring a partition action in lieu of a sale to the cotenants.’ (Harrison v. Domergue (1969) 274 Cal.App.2d 19.)”[4]LEG Invs. v. Boxler (2010) 183 Cal.App. 4th 484, 493. “The right of a cotenant to have the property in which he owns an interest partitioned is ordinarily absolute. However, that right may be … Continue reading
Therefore, unmarried co-owners of a property may file a partition action unless it is barred by waiver.
Code of Civil Procedure 872.210(b) Prohibits a Partition Between Divorcing Spouses
The law also provides that “an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.” California Code of Civil Procedure 872.210(b).
This means that property held as community property must be addressed in family court, not by way of a partition action. Spouses looking for information about how to sell jointly owned property in a divorce should seek the advice of a California divorce attorney.
Witkin explains that: “Actions by spouses or putative spouses for division of community, quasi-community, or quasi-marital property are expressly excluded from the partition statute. (C.C.P. 872.210(b).)” Parties., 12 Witkin, Summary 11th Real Prop (2023) § 66.
“The rule, originally judge made (Jacquemart v. Jacquemart, 142 Cal.App.2d 794, 299 P.2d 281), is now embodied in statute (Cal.Code of Civ.Pro. § 872.210).” Karp v. Karp, 109 A.D.2d 661 (N.Y. App. Div. 1985).
One court noted “that a statutory action for partition may not be brought with respect to marital property. Cal.Code of Civil Pro. s 872.210(b). This section codifies the prior precedent of Jacquemart v. Jacquemart, 142 Cal.App.2d 794, 299 P.2d 281 (1956), and ‘promotes a policy to make the family law court the sole forum for resolution of disputes relating to marital property.’ Legislative Committee Comment to s 872.210, id. (West Supp.1979).” Fehlhaber v. Fehlhaber, 669 F.2d 990, 998 (5th Cir. 1982).
One court described Jacquemart v. Jacquemart (1956) 142 Cal.App.2d 794 as follows:
She invokes a case law limitation we will call the Jacquemart rule, that a spouse cannot force a division of community property by an action for partition (Jacquemart v. Jacquemart (1956) 142 Cal.App.2d 794, 795-796(Jacquemart )), but this was not an action between spouses (contrast ibid.). Rather, Felix’s undivided interest in the property had passed to his estate upon his death, and it was his estate that sought division….
The Jacquemart rule is codified in subdivision (a) of Code of Civil Procedure section 872.210, which broadly authorizes partition actions while cautioning in subdivision (b): “Notwithstanding subdivision (a), an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.” This provision also confines the limitation to actions “between spouses,” which, as already noted, is not the case here. The Jacquemart rule therefore did not apply.
Polk v. Polk (Cal. Ct. App., Aug. 26, 2009, No. A119043) 2009 WL 2614292, at *17
Property Co-owned with a Married Couple
However, sometimes property is owned by a married couple and a third party or parties. The Law Revision Commission Comments to Code of Civil Procedure § 872.210 explain “that subdivision (b) precludes only severance of the community interests of spouses; it does not preclude partition of other estates or interests in the property that may exist concurrently or successively with the community interests.”
Indeed: “The [family] court’s jurisdiction extends only to the interests of the spouses, whether equal or unequal, and the court may not affect interests of third parties in the property. The interests of third parties may be subject to partition pursuant to Title 10.5 (commencing with Section 872.010) of Part 2 of the Code of Civil Procedure.” Law Revision Commission Comment to Fam. Code, § 2650.
Family courts sometimes issue joinders in that “the [family] court may order that a person who claims an interest in the proceeding be joined as a party to the proceeding in accordance with rules adopted by the Judicial Council pursuant to Section 211.” Fam. Code § 2021; see Cal.Rules of Court, Rule 5.24 (joinder in family law).
Law Revision Commission Comments to California Code of Civil Procedure § 872.210
In 1976, the California Law Revision Commission explained California Code of Civil Procedure § 872.210 as follows:
Section 872.210 supersedes former Sections 752 and 752a.
Subdivision (a)(1) continues the first portion of former Section 752a relating to personal property. Under former law, successive estates in personal property were apparently subject to partition. See former Section 752a (law governing partition of realty applies to partition of personalty) and 4 L. Simes & A. Smith, The Law of Future Interests § 1777, at 108 n. 28 (2d ed. 1956). Subdivision (a)(1) continues the right to partition successive estates in personal property. See also Sections 872.020 (partition of personalty governed by provisions of partition statute) and 872.710(c) (right to partition successive estates in property). As to personal property held on an express trust, see Section 872.840.
Subdivision (a)(2) supersedes the first portion of former Section 752 relating to real property. The former provision, while covering many of the usual cases, was unduly restrictive. Under subdivision (a)(2), where property is owned by several persons, whether or not they are joint tenants or tenants in common, partition is available to sever their interests. Thus, subdivision (a)(2) permits partition of partnership property. It should be noted, however, that partition of partnership property is subject to the limitations of Section 872.730. Likewise, under subdivision (a)(2), where property is owned in successive estates, partition is available. Former law limited partition of such estates to actions by a life tenant against the remainderman. See Akagi v. Ishioka, 47 Cal.App.3d 426, 120 Cal.Rptr. 807 (1975). Subdivision (a)(2) removes any such limitations. It should be noted, however, that, unlike partition of concurrent interests which may be partitioned as of right (subject to the doctrine of waiver), partition of successive estates is permitted only if it is in the best interests of all the parties. See Section 872.710(c).
Subdivision (b) codifies the rule that community property is not subject to partition. See Jacquemart v. Jacquemart, 142 Cal.App.2d 794, 299 P.2d 281 (1956). Community, quasi-community, and quasi-marital property are subject to division under The Family Law Act. See Civil Code §§ 4452 (quasi-marital property) and 4800 (community and quasi-community property). It should be noted that subdivision (b) precludes only severance of the community interests of spouses; it does not preclude partition of other estates or interests in the property that may exist concurrently or successively with the community interests. Subdivision (b) promotes a policy to make the family law court the sole forum for resolution of disputes relating to marital property. One consequence of this policy is that community interests in property cannot be severed absent a dissolution proceeding or a proceeding for legal separation (which under Civil Code Section 4508 requires consent of both parties). Whether community interests in property should be severable during marriage without consent of both parties is an issue the California Law Revision Commission has not addressed; the Commission believes that this issue is more appropriately resolved within the context of The Family Law Act.
The provision formerly found in Section 752 for partition by a lienholder “on a parity with that on which the owner’s title is based” is not continued by Section 872.210. The provision was special legislation of extremely limited application. See, e.g., Elbert, Ltd. v. Nolan, 32 Cal.2d 610, 197 P.2d 537 (1948); Elbert, Ltd. v. Clare, 40 Cal.2d 498, 254 P.2d 20 (1953). Moreover, it was an exception to the rule that only the holder of a substantial property interest is entitled to demand partition. In some cases, foreclosure of the lien will result in a tenancy in common relationship. See Elbert, Ltd. v. Nolan, supra. This act provides a one-year grace period for persons affected by the repeal of this provision.
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References
| ↑1 | Harrison v. Domergue (1969) 274 Cal.App. 2d 19, 21 |
|---|---|
| ↑2 | Orien v. Lutz (2017) 16 Cal.App. 5th 957, 962 |
| ↑3 | Formosa Corp. v. Rogers (1951) 108 Cal.App. 2d 397, 409 |
| ↑4 | LEG Invs. v. Boxler (2010) 183 Cal.App. 4th 484, 493. “The right of a cotenant to have the property in which he owns an interest partitioned is ordinarily absolute. However, that right may be waived or altered by agreement.” Harrison v. Domergue (1969) 274 Cal.App. 2d 19, 21. Said another way: “While it is the general rule that a cotenant may require a partition of the cotenancy as a matter of absolute right, this right may be modified or waived by contract, either expressly or by implication.” Schwartz v. Shapiro (1964) 229 Cal.App. 2d 238, 253. |
