California Code of Civil Procedure 872.630 is the California partition statute that describes how the court addresses liens, including their status and priority, in a partition lawsuit. The statute provides that:
(a) To the extent necessary to grant the relief sought or other appropriate relief, the court shall determine the status and priority of all liens upon the property.
(b) The court may appoint a referee to ascertain the facts necessary for the determination required by this section. Upon application of the referee or a lienholder, the court shall direct the issuance of process to compel attendance of witnesses, the production of books, documents, or things, and the filing of verified claims. The report of the referee thereon shall be made in writing to the court and shall be confirmed, modified, or set aside and a new reference ordered, as the justice of the case may require.
California Code of Civil Procedure 872.630
Normally, the rule is that: “The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.” [1]Code of Civil Procedure 872.510 Accordingly, lienholders would be named in the case.
However, applying Section 872.630, one court found that: “In an action for partition where encumbrances are of record at the commencement of the action and the lien holder is not a party to the action, the court must order such person to be made a party or it must appoint a referee to ascertain what amount if any remains unpaid; also provision is made for such lienholder to make proof before the referee and for his report to be confirmed by the court.” Balkins v. Los Angeles County (1947) 81 Cal.App.2d 42, 47.
Accordingly, this statute gives additional authority to partition referees in California in ordinary partition cases and when there are disputed liens on the property.
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References
| ↑1 | Code of Civil Procedure 872.510 |
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