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Code of Civil Procedure 874.040 CCP – Apportionment of Costs (Costs of Partition)

California Code of Civil Procedure 874.040 is the California partition statute that allows the court to apportion costs between the co-owners from the proceeds of sale of the property. The statute provides that:

Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.

California Code of Civil Procedure 874.040

As a leading California secondary source explains: “The fees must be apportioned among the parties in proportion to their interests, unless the court determines that some other apportionment is more equitable.” Partition Actions., 7 Witkin, Cal. Proc. 6th Judgm (2022) § 229.

“Again, the fact that the action was contested was no bar to the proportional allocation of attorney fees.” Orien v. Lutz (2017) 16 Cal.App.5th 957, 967.

A related concept is that the court may award “reasonable attorney’s fees incurred or paid by a party for the common benefit.” California Code of Civil Procedure 874.010(a).

“The purpose of the statute is stated in Stewart v. Abernathy (1944) 62 Cal.App.2d 429 at p. 433, 144 P.2d 844 as follows: ‘… The purpose of the statute is to divide the cost of legal services among the parties benefited by the result of the proceeding.” Both appellant and respondent benefited from the proceedings and they should bear costs in accordance with their interest in the real property. Appellant, as two-thirds owner, should bear two-thirds of the cost and respondent, as one-third owner, should bear one-third of the costs.'” Stutz v. Davis (1981) 122 Cal.App.3d 1, 4–5.

One unpublished case noted the issue where a referee report allocated fees contrary to the interest of the parties as follows: “The referee’s accounting is irreconcilable with the general rule under section 874.040. The referee expressly allocated costs equally between the parties even though plaintiff’s and defendants’ interests are 85 percent and 15 percent, respectively. In order for the court to properly approve the referee’s accounting, therefore, the approval must be based on the final clause of the statute, which permits the trial court to ‘make such other apportionment as may be equitable.’ (§ 874.040.)” Akmakjian v. Haider (Cal. Ct. App., Dec. 3, 2010, No. E050146) 2010 WL 4913940, at *2.

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 260 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.

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