California Code of Civil Procedure 874.319 is the California partition statute that establishes whether or not a partition in kind would result in great prejudice to the cotenants of the property under the California Partition of Real Property Act. The statute states the following:
(a) In determining whether partition in kind would result in great prejudice to the cotenants as a group, the court shall consider the following:
California Code of Civil Procedure 874.319
(1) Whether the property practicably can be divided among the cotenants.
(2) Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur.
(3) Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other.
(4) A cotenant’s sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant.
(5) The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property.
(6) The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property.
(7) Any other relevant factor.
(b) The court shall not consider any one factor in subdivision (a) to be dispositive without weighing the totality of all relevant factors and circumstances.
Partition of Real Property Act
- California Partition of Real Property Act 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
Great Prejudice
Code of Civil Procedure Section 874.319(a) is primarily concerned with the effects of a partition in kind within partitions covered by the Partition of Real Property Act. A partition in kind is the physical division of the property into shares of proportional value and the granting of full ownership of an individual claim to each cotenant. Sometimes, this type of partition results in an inequitable division of the land whereby the value of each share of the property after the division is lower than the value of each share if the property were never divided.
Whether the Property Can be Practicably Divided
Section 874.319(a)(1) provides that the court shall consider whether it can practicably divide the co-owned property when evaluating the prejudicial effects of a partition in kind on the cotenants.
Aggregate Fair Market Value of Parcels After the Division
Section 874.319(a)(2) requires that the court consider whether the aggregate fair market value of the divided parcels would be materially less in value after the partition in kind than if the court sold the property as a whole in a partition by sale. Consider the following scenario: two of three cotenants of a property containing a farm want to keep their share of the property. In contrast, the other cotenant intends to sell his share of the property. The farm’s existence on the property might make it practically unfeasible to divide it into shares of equal value if the portion with the improvements is worth more than the remainder, so a court would likely order a partition by sale rather than allow a partition in kind.
Evidence of the Collective Duration of Ownership or Possession of the Property
Section 874.319(a)(3) obligates evidence of the duration of ownership or possession of the property by a cotenant and one or more related predecessors in title or possession to the cotenant. The evidence requirement exists to substantiate the claim that the other property owners are cotenants.
Sentimental Attachment to the Property
Section 874.319(a)(4) provides that the court consider whether a cotenant has a sentimental attachment to the property. The cotenant can derive this attachment from an “ancestral or other unique or special value that the land may hold to the cotenant.” A cotenant may argue that their family’s ancestral ties to that parcel of land grant them a sentimental attachment to it.
Harm Without the Same Use of the Property
Section 874.319(a)(5) explains that the court shall consider whether the cotenant affected by the partition (1) engaged in a lawful use of the property and (2) would be harmed if they cannot continue the same use of the property. Such harm may come in the form of a future financial loss. For example, a decrease in rental income derived from the use of the parcel after the partition constitutes the loss anticipated by this provision.
Section 874.319(a)(6) requires that the court analyze the extent to which each cotenant has contributed their pro-rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property. Courts must also consider what efforts cotenants have made towards the property’s physical improvement, maintenance, or upkeep.
Other Relevant Factors
Section 874.319(a)(7) provides that courts may analyze other relevant factors when determining whether the partition in kind will significantly prejudice a cotenant.
The Totality of All Relevant Factors
Section 874.319(b) establishes that, while the court will consider the above factors in its analysis, it will not assign one factor greater weight than all the factors together. The court will take a more holistic view to ensure a clear understanding of cotenants’ use of, contribution to, relationship with, and value of their share of the property and ascertain whether they will suffer a material loss from the partition in kind.
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 eight, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 430 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.
