California Code of Civil Procedure 872.720 is the California partition statute that allows the court to enter an interlocutory judgment of partition, thereby finding that a partition will be entered in the case. The statute provides that:
(a) If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.
(b) If the court determines that it is impracticable or highly inconvenient to make a single interlocutory judgment that determines, in the first instance, the interests of all the parties in the property, the court may first ascertain the interests of the original concurrent or successive owners and thereupon make an interlocutory judgment as if such persons were the sole parties in interest and the only parties to the action. Thereafter, the court may proceed in like manner as between the original concurrent or successive owners and the parties claiming under them or may allow the interests to remain without further partition if the parties so desire.
California Code of Civil Procedure 872.720
Thus, “a viable interlocutory partition judgment must include both a determination of the parties’ interests and order partition. But while it may, it need not, include the manner of partition.” Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142, as modified (June 27, 2018).
3 Requirements for Interlocutory Judgment of Partition in California
Said more clearly, there are only three requirements to obtain a partition in California, which is usually partition by sale:
1) Plaintiff is indeed entitled to partition, which generally means that the plaintiff has not waived the right to partition. This is known as the right to partition in California.California Code of Civil Procedure 872.710
2) A determination of ownership interests of the parties, which is usually undisputed as found on the face of deed in which they became co-owners, i.e., tenants in common or joint tenants.
3) Determine the manner of partition, which is almost always partition by sale when the property is a single family residence since it cannot be split in parts to be awarded to each co-owner in a partition in-kind. While many parties believe they can hold up the proceedings by claiming that they want partition by appraisal, the law provides that “the parties may agree upon a partition by appraisal”California Code of Civil Procedure 873.910, meaning the refusal by the plaintiff to agree to partition by appraisal prohibits this form of partition.
So long as these requirements are met, the court “shall” appoint a referee.California Code of Civil Procedure 873.010 Miller & Starr explains that: “If the court finds that the plaintiff is entitled to partition, it must make an interlocutory judgment that determines the interests in the property and orders partition of the property.” Partition—in general, 12 Cal. Real Est. (4th ed.) § 40:126.
Through this method, the court completes the first phase of the partition by granting the interlocutory judgment of partition. As an unpublished opinion explained: “Generally, the action involves two judgments. (§§ 872.720, 873.290, 874.210.) First, the trial court determines the respective interests of the alleged … Continue reading
Accordingly, “an interlocutory judgment in a partition action is to include two elements: a determination of the parties’ interests in the property and an order granting the partition,” i.e., that there has not been a waiver of the right to partition. (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143, as modified (June 27, 2018).) The third element, “the manner of partition—i.e., a physical division or sale of the property—[can] be decided when…the parties’ ownership interests are determined.” (Id.)
Code of Civil Procedure § 760.030(b) explains that: “In an action or proceeding in which establishing or quieting title to property is in issue the court in its discretion may, upon motion of any party, require that the issue be resolved pursuant to the provisions of this chapter to the extent practicable.”
Contact an Experienced Partition Attorney in California
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our knowledgeable partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15-minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568), email us at info(at)talkovlaw.com, or fill out a contact form online. Contact Talkov Law today to find out how you can pay nothing today and have your legal fees paid from the proceeds of sale of your property!
|↑1||California Code of Civil Procedure 872.710|
|↑2||California Code of Civil Procedure 873.910|
|↑3||California Code of Civil Procedure 873.010|
|↑4||As an unpublished opinion explained: “Generally, the action involves two judgments. (§§ 872.720, 873.290, 874.210.) First, the trial court determines the respective interests of the alleged co-owners, whether the plaintiff has the right to partition, and the manner of partition. (§§ 873.210, 873.510, 873.910.) “If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” (§ 872.720.) The interlocutory judgment is appealable. (§ 904.1, subd. (a)(9).) After the interlocutory judgment, the court appoints a referee who “shall divide the property and allot the several portions to the parties, quality and quantity relatively considered, according to their interests in the property as determined in the interlocutory judgment.” (§ 873.210.) Upon completion of the proposed division, the referee files a report describing his or her division and allotment of shares to each party. (§ 873.280.) The trial court either confirms the report and enters a “judgment of partition” or sets aside the report and orders a new report to be prepared. (§ 873.290, subd. (b).) The division of the property “is effective and title vests in accordance therewith upon entry of judgment of partition.” (§ 873.290, subd. (c).) The judgment is appealable. (§ 904.1, subd. (a)(1).)” Hill v. Galuppo (Cal. Ct. App. Aug. 17, 2005) No. B179113, 2005 WL 1972411, at *3–4.|