California Code of Civil Procedure 873.110 is the California partition statute that addresses services provided to the partition referee by third persons in a partition action in California. The statute provides that:
Subject to the limitations of this article, the court may:
(a) Authorize or approve contracts of the referee for the services and expenses of surveyors, engineers, appraisers, attorneys, real estate brokers, auctioneers, and others.
(b) Allow and direct payment of or reject claims under such contracts.
(c) Provide for the date of commencement of any lien provided by law or contract for such claims.
California Code of Civil Procedure § 873.110
Basically, the court may authorize a partition referee to engage the services of an attorney, surveyor, auctioneer, or engineer to assist in the performance of their duties in a partition action. See Right of partition—Partition by a physical division of the property, 4 Cal. Real Est. § 11:16 (4th ed.)
Law Revision Commission Comments to California Code of Civil Procedure § 873.110
In 1976, the California Law Revision Commission explained California Code of Civil Procedure § 873.110 as follows:
Section 873.110 is new. It recognizes that the court is the supervising entity in carrying out the partition. It removes from the referee, acting alone, the authority to engage the services of third persons for his assistance. It contemplates that the court will authorize or approve contracts of the referees for third-party services and expenses, allow or reject claims thereunder, and in proper cases specify the priority of any lien therefor. See Section 874.120 (lien for costs).
Former Sections 764 and 768 provided only for employment by the referee of surveyors and necessary assistants and allowance of their fees and expenses. For particular provisions relating to employment of third persons, see Sections 873.120 to 873.140.
Section 873.110 is intended to vest the court with broad discretion to approve contracts for services and with the corresponding duty to provide adequate lien protection for persons who render such services. Surveying services, for example, may involve substantial sums. Ability to obtain such services may depend upon assurance of, or security for, payment despite any later settlement by the parties and dismissal of the action.
Similarly, in a particular case, employment of a real estate broker by the referee may be desirable. Under Section 873.110, such employment may be authorized or approved and the terms of the contract prescribed or approved by the court. For the court’s authority to fix agents’ commissions on a sale, see Section 873.745.
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