California Code of Civil Procedure 873.230 is the California partition statute that explains the effect of a co-owner transferring a portion of the property prior to the filing of a partition action in California. The statute provides that:
Where prior to the commencement of the action a party has executed a deed purporting to convey to a purchaser a portion of the property to be divided, to the extent it can be done without material injury to the rights of the other parties, the property shall be so divided as to allot that portion to the purchaser, the purchaser’s heirs or assigns, or such other action taken as to make the deed effectual as a conveyance of that portion of the property.
California Code of Civil Procedure § 873.230
In other words, when a cotenant has executed a deed transferring a portion of the property before the partition action, to the extent possible, the property should be divided so that the purchaser of that portion of the property receives an allocation of the portion purchased. See Miller & Starr, Right of partition—Partition by a physical division of the property, 4 Cal. Real Est. § 11:16 (4th ed.). The statute appears to give greater rights to a purchaser of a fractional interest over an initial co-owner by dividing the the property with a preference in the allotment to that purchaser in certain circumstances.
The statute seems to imply that co-owners of land that can be divided often occupy different portions of the land. Perhaps one co-owner farms on the eastern portion of the 40 acres while the other co-owner farms on the western portion of the 40 acres. This would be contrasted with an ordinary single-family home that cannot be partitioned in kind where the co-owners occupied the same portion of the land, i.e., where the home was located.
Law Revision Commission Comments to California Code of Civil Procedure § 873.230
In 1976, the California Law Revision Commission explained California Code of Civil Procedure § 873.230 as follows:
Section 873.230 continues the substance of the fourth sentence of former Section 764. The provisions of this section apply only to transfers made prior to commencement of the action.
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