How a Co-Owner Can File and Win Based on the Absolute Right to Partition in California
One of the most common questions we get as real estate partition attorneys in California is how to force the sale of jointly owned property, In other words, we are being asked whether co-owners of property have a right to partition the property by sale. The short answer is yes – the right to partition is absolute in California.
However, we need to dive deeper into partition actions in California, including reasons for partitioning a property, California law on partition actions, and the rights of the co-tenants to better understand both the question and the answer.
Do both owners have to sign to sell a house? No!
All of the co-owners are not required to sell a house in California. Instead, a partiton action asks a judge to sign for all co-owners, thereby ensuring that coowners are not held hostage in a failed coownership.
Why Partition a Property?
Partition by sale involves a court-ordered offer of the entire property to third parties, with the highest buyer among these becoming the new owner the whole property.
Co-owners of a jointly owned property may choose to exercise their right to partition for a variety of reasons, usually due to a disagreement or dispute that arose between the co-owners. How can the co-owners make best use of the property? What if one co-owner wants to sell, but the other doesn’t? What if one co-owner is in possession of the property while the others pay expenses? These disputes (and many more) can be resolved in California as explained in our guide on partition actions in California.
Under California law, the right to file a partition action requesting that the property be sold is absolute. This means that the right to partition is available to any co-owner of real estate, known in law as a co-tenant, no matter what kind of property is at stake or how large or small the interest of the co-tenant is.
If you are looking to win a partition action, there are some tips that can help ensure a desirable outcome. If you are looking to stop a partition action filed against you, there are also some tricks to help save your house.
Keep in mind that all of this information likely does not apply to property a married couple owns as joint tenants. A California divorce attorney can assist you in selling jointly owned property in a divorce.
California Law on Partition
Multiple cases in California have established the absolute right to partition. One case explained that: “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the cotenants will be promoted by refusing the application or temporarily postponing action, . . .’” Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.
Another case set forth that: “The action for partition . . . is a special proceeding regulated by the provisions of the statute and ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right is absolute.” Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.
Even the leading treatise on California real estate law, Miller & Starr, explains under the heading “Absolute right to partition” that “each cotenant has an ‘absolute’ right to partition the common property.” Right of partition—In general, 4 Cal. Real Est. § 11:14 (4th ed.). While there are very unusual cases in which the right to partition had been waived or otherwise, these cases are so far outside the fact pattern of virtually all co-owners of real estate in California that these strengthen, rather than undermine, that the right to partition is absolute.
The Rights of the Co-Owners (Co-Tenants / Tenants-in-Common)
Fractional Interest of Co-Owners
Because the right to partition is absolute, the fractional interest of co-tenants is not a deciding factor. A co-tenant with even a small interest in a property can file a partition action. Because it may be very difficult, if not impossible, to market a fractional interest in a property, the law allows co-tenants with even a small interest in the property to file a partition action. The property will either be sold, with each co-owner receiving the corresponding shares of his or her ownership in the property, or the property will be physically divided (partition in kind), where each owner receives undivided interest in his or her own share of the land. Consult our page regarding partition by sale vs. partition in kind for more detailed information on these kinds of partition.
Co-Owners Can File for Partition Without Conflict
Additionally, a partition action can be filed without conflict among the co-owners. For example, an ex-husband co-owner can file a partition action against his ex-wife co-owner even if their relationship is entirely amicable. In general, partition actions usually involve parties who were or are very close, since co-owning a property with another person is a serious commitment. Parties usually include past or present family members, romantic partners, and close friends and are entered into voluntarily, based on trust at that time, or involuntarily (such as by a trust, will, or divorce decree). Conflict often arises when these once-intimate relationships dissolve. Although such conflict is not a necessary prerequisite to file a partition action, it is all too common.
Hardship Caused on a Co-Owner (Usually the Co-Owner in Possession)
Lastly, any hardship that the tenant-in-possession (co-owner-in-possession) faces does not factor into the other co-tenant’s right to partition. So, an ex-wife can file a partition action, which may cause the sale of the house, against her ex-husband who currently resides in the house. Even if the ex-husband does not have other accommodations, the law still allows the ex-wife to file for a partition action on the property. The ex-husband then can be the highest bidder on the property. If the tenant-in-possession (in this case, the ex-husband) is not the highest bidder, the tenant-out-of-possession (the ex-wife) should not receive diminished profits from the sale due to hardship it would cause the tenant-in-possession. In other words, the tenant-out-of-possession has a right receive his or her share of value from a common property, whether or not it would cause the tenant-in-possession hardship. An experienced partition attorney can help you navigate issues that arise if the tenant-in-possession refuses to cooperate with an orderly sale of the property.
How to Force the Sale of Inherited Property
California recognizes the absolute right to partition a house that you have inherited from you parents, family members or friends. This right does not depend on who may live there, whether it be a sibling, aunt, uncle, friend or otherwise. This can occur through a will, trust, joint tenancy with right of survivorship, transfer on death deed or otherwise. The sooner you begin the process for partition of inherited property, the sooner your co-ownership troubles will end.
Consult a Knowledgeable Partition Attorney in Los Angeles, Orange County, San Francisco, Riverside, San Diego, San Jose, Sacramento, Fresno, and Surrounding Areas in California
There are many ways to become a co-owner of real estate, but unless all co-owners agree to sell, there is only one remedy under the law: to force the sale of a property with a complaint for partition by sale. To ensure that a partition action proceeds smoothly given the unique complications in every case, co-owners should seek the advice of an experienced partition attorney in California.
At Talkov Law, our experienced partition real estate attorneys are here to help. Having handled countless cases in California, the attorneys at Talkov Law are veterans in partition action matters. Our partition action attorneys regularly represent co-owners in partition actions to ensure their rights and interests are protected. Call Talkov Law today at (844) 4-TALKOV (825568) or contact us online for a free analysis of your situation!
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