While it is possible for a co-owner to waive the right to partition a property, it is a rarely seen and cannot happen accidentally.
It is important to remember that the law as to a “waiver” of the right to partition limits the co-owner’s free alienability in their contractual rights. Because of this, California courts are sure to closely scrutinize any claims of waiver in light of a co-owners’ absolute right to partition.
Right to Partition is Absolute Unless There is a Waiver
Before understanding the concept of a waiver of partition, it is important to understand that every co-owner in California has a right to partition unless they waive that right. As explained by the California partition statutes, “partition as to…the property shall be as of right unless barred by a valid waiver.” Cal. Code Civ. Proc. 872.710(b). As a recent court explained: “A co-owner of property has an absolute right to partition unless barred by a valid waiver.” Orien v. Lutz (2017) 16 Cal. App. 5th 957.
What is a waiver?
“’Waiver’ means the intentional relinquishment or abandonment of a known right. Waiver requires an existing right, the waiving party’s knowledge of that right, and the party’s actual intention to relinquish the right. Waiver always rests upon intent. The intention may be express, based on the waiving party’s words, or implied, based on conduct that is so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.” Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 475 (citations and quotations omitted).
Any Proclaimed Waiver Must be Shown by Clear and Convincing Evidence
If your co-owner is claiming that you waived the right to partition, you’re in luck because they should have an uphill battle in proving this by clear and convincing evidence. “Case law is clear that waiver is the intentional relinquishment of a known right after knowledge of the facts. The burden … is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and doubtful cases will be decided against a waiver.” Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31, as modified on denial of reh’g (Oct. 26, 1995) (quoting City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107–108). The clear and convincing evidence standard “is particularly apropos in cases in which the right in question is one that is ‘favored’ in the law….” City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107–108. “Partition is a remedy much favored by the law.” LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.
Waiver Is Almost Always Explicit and in Writing
A waiver would occur through “words, or implied, based on conduct.” Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 475 (citations and quotations omitted). “[T]he right of partition may be waived by contract, either express or implied.”LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493, quoting American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014. This means that a waiver can be shown in writing, orally, or implied by conduct.
However, when waiver of the right to partition does occur, it is usually written and unambiguous in its intent. As one court explained, a written waiver could occur in “an agreement among co-owners of property….”Orien v. Lutz (2017) 16 Cal. App. 5th 957, 963.
Notably, one California court found an express waiver where there was a “written agreement that provided that one party would not sell his one-half interest without giving the other coowner the right to purchase it at a price not in excess of the original purchase price.”American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014.
Many such waivers would be found in writing in a tenancy-in-common (TIC) agreement. However, tenancy-in-common agreements are usually drafted when unrelated parties own one parcel of land, but effectively occupy different parts of the property. Basically, this is a form of subdividing the property without formally going through the legal proceedings or creation of a condominium association to do so, as found under AB 1033.
Writings of Any Kind Between Co-Owners, Let Alone a Writing that Waives the Right to Partition, is Rarely Seen in California Partition Actions
As to the idea that there is a writing that waives partition between co-owners, it is rare for co-owners to have any writing that governs their co-ownership based on hundreds of partition actions handled by Talkov Law Corp. This is because, in California, most co-owners simply become co-owners because they are named in a deed placing multiple owners on title. This is usually because of inheritance, generally between siblings, or because of unmarried romantic couples whose relationship did not work out. These parties realize later the complications of being a co-owner. Rarely do the parties decide to draft and sign a written agreement covering the partition action.
Waiver by Conduct is Rarely Seen in California Partition Actions
Interestingly, the idea that a party waived their right expressly, but did not do so in writing, i.e., orally/verbally, is almost never an issue in partition actions. Perhaps this is because such a contention would not meet the clear and convincing standard for waiver.
Whatever the reason may be, waiver by conduct is sometimes raised, but almost never pans out. Indeed, while the cases about waiver by conduct are interesting for lawyers to read, these cases represent the rare anomalies. In practice, as between ordinary co-owners, waiver of a right to partition is rarely applicable. Claims that a co-owner lost their rights by abandonment of the house or through some generalized purpose to purchase the home are almost universally rejected as insufficient. Courts routinely enforce the right to partition by setting a high bar for any claims of waiver by conduct.
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 six, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled 250 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!
|↑1||Cal. Code Civ. Proc. 872.710(b).|
|↑2||Orien v. Lutz (2017) 16 Cal. App. 5th 957.|
|↑3, ↑7||Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 475 (citations and quotations omitted).|
|↑4||Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31, as modified on denial of reh’g (Oct. 26, 1995) (quoting City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107–108).|
|↑5||City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107–108.|
|↑6||LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.|
|↑8||LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493, quoting American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014.|
|↑9||Orien v. Lutz (2017) 16 Cal. App. 5th 957, 963.|
|↑10||American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014.|