Code of Civil Procedure 872.710 CCP – Right of Plaintiff to Partition; Concurrent Interests; Successive Estates (Partition Actions)

California Code of Civil Procedure 872.710 is the California partition statute that governs the right to partition in California. The statute provides that:

(a) At the trial, the court shall determine whether the plaintiff has the right to partition.

(b) 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.

(c) Partition as to successive estates in the property shall be allowed if it is in the best interest of all the parties. The court shall consider whether the possessory interest has become unduly burdensome by reason of taxes or other charges, expense of ordinary or extraordinary repairs, character of the property and change in the character of the property since creation of the estates, circumstances under which the estates were created and change in the circumstances since creation of the estates, and all other factors that would be considered by a court of equity having in mind the intent of the creator of the successive estates and the interests and needs of the successive owners.

California Code of Civil Procedure 872.710

The practical effect of this statute is that: “A co-owner of property has an absolute right to partition unless barred by a valid waiver.” [1]Orien v. Lutz (2017) 16 Cal.App. 5th 957, 962 The waiver of the right to partition is extremely rare in California law. A trial court is entitled to “grant[ a] motion for summary adjudication on [a] cause of action for partition by sale… and to enter an interlocutory judgment directing partition of the Property by sale.” LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 497–98.

However, trial is hardly the only method to enter an interlocutory judgment. Rather, the Court of Appeal reversed and “directed” the trial court “to enter a new order granting LEG’s motion for summary adjudication on its first cause of action for partition by sale,…and to enter an interlocutory judgment directing partition of the Property by sale.” LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 497–498.

The partition statutes grant courts the broadest possible authority as follows: “In the conduct of the action, the court may hear and determine all motions, reports, and accounts and may make any decrees and orders necessary or incidental to carrying out the purposes of this title and to effectuating its decrees and orders.” Code Civ. Proc. § 872.120. The Law Revision Comment explains that this section’s “purpose is to give the broadest possible statutory authorization for powers that the court, to a large extent, apparently already had. The succeeding sections of this article elaborate on, but do not exhaust, the court’s power in partition actions. While partition actions in California are a creature of statute, they are nonetheless equitable in nature, and the statutory provisions are to be liberally construed in aid of the court’s jurisdiction.”

Alternatively, a court may grant a motion for judgment on the pleadings. See, e.g., Korchemny v. Piterman (2021) 68 Cal. App. 5th 1032, 1054 (motions for judgment on the pleadings may be made at any time and “does not specify any grounds which might serve to limit its power to do so”). While this motion may simply be deemed a non-statutory motion for judgment on the pleadings, Code of Civil Procedure Section 438 (c)(1)(A) clarifies that a plaintiff to move for judgment on the pleadings if the “complaint states facts sufficient to constitute a cause of action … and the answer does not state facts sufficient to constitute a defense.”

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 seven, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 300 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!

If you're looking to end your co-ownership dispute, contact California's premier partition action law firm by calling Talkov Law at (844) 4-TALKOV (825568) or sending us a message today.

References

References
1 Orien v. Lutz (2017) 16 Cal.App. 5th 957, 962
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