California Code of Civil Procedure 872.510 provides as follows: “The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.”
“It should be noted that ‘interest’ includes liens,” e.g., deeds of trust and mortgages. See Legislative Committee Comments to Code Civ. Proc. § 872.510.
However, simply because a plaintiff names a lender as a party in a partition action doesn’t mean the lender will respond. Indeed, lenders generally either do not respond to the partition complaint or work with the plaintiff to reach a stipulation confirming the priority of the lien.
Lenders rarely object to a partition action because their only real concern is getting paid. In a partition by sale, for example, a lienholder is going to get paid from the proceeds of sale before the co-owners receive their portion of the proceeds.
A party who has no lien when the action is filed, but obtains one later, need not be made a party. This is because the judgment in the partition action dates back to the lis pendens in the partition action.
Rather, it is that party’s right and duty to intervene and set up the lien and have it adjudicated in the decree. This was addressed in Towle Bros. Co. v. Quinn (1903) 141 Cal. 382, 385, where that court stated: “The plaintiff in the partition suit was not called upon to make the respondent herein a party defendant, for he had no lien of record when that suit was commenced.”
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!