(a) The court shall appoint a referee to divide or sell the property as ordered by the court.California Code of Civil Procedure 873.010
(b) The court may:
(1) Determine whether a referee’s bond is necessary and fix the amount of the bond.
(2) Instruct the referee.
(3) Fix the reasonable compensation for the services of the referee and provide for payment of the referee’s reasonable expenses.
(4) Provide for the date of commencement of the lien of the referee allowed by law.
(5) Require the filing of interim or final accounts of the referee, settle the accounts of the referee, and discharge the referee.
(6) Remove the referee.
(7) Appoint a new referee.
Law Revision Commission Comments to California Code of Civil Procedure § 873.010
In 1976, the California Law Revision Commission explained California Code of Civil Procedure § 873.010 as follows:
Section 873.010 sets out some, but not all, of the court’s powers with respect to the referee.
Subdivision (a), providing for court appointment of a single referee, supersedes provisions of former Section 763 that required the consent of the parties for the appointment of a single referee.
Subdivision (b)(1) is new. Whether a bond is required depends on the circumstances of the case.
Subdivision (b)(2) is new; it gives express recognition to the instructions procedure. It is a valuable tool for resolving ambiguities and matters not otherwise covered and, if properly used, serves to expedite the action. See also Section 873.070 (petition for instructions).
Subdivision (b)(3) states the substance of former Section 768 in providing for court allowance of fees and expenses of referees. See Section 874.010 and Comment thereto (costs incurred in partition action).
Subdivision (b)(4), permitting the court to fix the date of commencement of the lien of the referee (see Section 874.120), is new. It protects the referee in case of later settlement and dismissal of the action. For authority of the court to fix the date of commencement of liens of third persons furnishing services, see Section 873.110.
Subdivision (b)(5) is new. It recognizes the need for and practice of the court to receive and pass upon the account and final report of the referee and thereafter to discharge the referee. This applies particularly in, but is not limited to, sales transactions.
Subdivision (b)(6) restates the substance of the introductory portion of former Section 766. It broadens this provision to apply to the referee for sale as well as for division.
Subdivision (b)(7) is new; for specific provisions authorizing appointment of a new referee, see Sections 872.630(b) (new referee for determination of interests of lienholders) and 873.290(b) (new referee for preparation of new report on division). See also Sections 873.730 and 873.740 (authority of court to order new sale).
Partition of Real Property Act
The Partition of Real Property Act includes the following statutes:
- CCP § 874.311. Short Title; Application of Act
- CCP § 874.312. Definitions
- CCP § 874.313. Applicability; Relation to Other Laws
- CCP § 874.314. Method of Service; Notice by Publication
- CCP § 874.315. Referees
- CCP § 874.316. Determination of Fair Market Value; Notice
- CCP § 874.317. Cotenant Buyout of Interests
- CCP § 874.318. Partition Alternatives
- CCP § 874.319. Considerations for Partition in Kind
- CCP § 874.320. Court Ordered Open-Market Sale; Sealed Bids; Auction
- CCP § 874.321. Filing Report for Open-Market Sales
- CCP § 874.321.5. Apportionment of the Costs of Partition
- CCP § 874.322. Repealed by Stats.2022, c. 82 (A.B.2245), § 12
- CCP § 874.323. Supersedes the Electronic Signatures in Global and National Commerce Act
Court shall appoint a referee
The most important part of this statute is the mandate that “The court shall appoint a referee to divide or sell the property as ordered by the court.”Code of Civil Procedure 873.010(a) This gives the court no discretion to turn down the appointment of a referee so long as the plaintiff is indeed entitled to partition. In most cases, the right to partition is absolute such that the court will be required to enter a judgment of partition appointing a referee, usually to market and sell the property.Code of Civil Procedure 872.720
This statute dovetails with California Code of Civil Procedure 873.060 providing that: “The referee may perform any acts necessary to exercise the authority conferred by this title or by order of the court.” In turn: “The referee or any party may, on noticed motion, petition the court for instructions concerning the referee’s duties under this title.” California Code of Civil Procedure 873.070.
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