In Lazzarevich v. Lazzarevich (1952) 39 Cal.2d 48, 50–51, the California Supreme Court held that a joint tenant has a right to partition unless that right has been waived, and that an unpaid judgment owed to the other co-owner cannot defeat it. The co-owner who wants out does not have to settle every money dispute first. If the debt is a valid lien on the property, it is protected inside the partition action; either way, the partition goes forward.
The Right to Partition Is a Matter of Right
A partition action is the lawsuit a co-owner files to end co-ownership of real estate, usually through a court-ordered sale. The first question in every partition is whether the plaintiff has the right to partition. Lazzarevich answers it plainly: a co-owner is entitled to partition “as a matter of right.” The court does not weigh whether partition is a good idea, whether the timing is fair, or whether the co-owners have other unresolved disputes. The only exception the court recognized is a waiver, meaning an agreement in which the co-owner gave up the right to partition.
That matters because co-owners who refuse to sell often look for a reason to keep the case from moving. One of the most common is money: “You owe me, so you can’t force a sale until you pay.” Lazzarevich shows why that argument fails. A debt is not a waiver, so it does not touch the right to partition.
The Facts: A Couple Who Learned They Were Not Married
John Lazzarevich received an interlocutory decree of divorce from Catherine Lazzarevich in 1932, and his attorney obtained entry of the final decree in 1933. The couple reconciled in 1935 and lived together until 1945, but they never remarried. In 1938, John contracted with the Veterans Welfare Board to buy a home, and in 1941 he assigned the contract to himself and Catherine as joint tenants. (Lazzarevich, at pp. 48–49.)
In 1945, Catherine discovered that the final divorce decree had been entered years earlier. She sued John for the value of her services and the money she had advanced during what she believed was a marriage, and on appeal her judgment was increased to $10,277.50. In 1949, John sued to undo the assignment that made Catherine a joint tenant and, in the alternative, to partition the property. (Lazzarevich, at pp. 48–49.)
The Trial Court Made Partition Wait on the Debt
The trial court ruled against John on both claims. His request to undo the assignment came too late, because a lawsuit based on a mistake must be filed within three years of discovering it, and the trial court found that John had known for years that he and Catherine were not married. The Supreme Court affirmed that part of the judgment. (Lazzarevich, at p. 50.)
On partition, the trial court concluded that John was barred from partition because he had not paid Catherine’s money judgment. In effect, it made John’s right to partition depend on paying a debt. The Supreme Court called that conclusion “erroneous.” (Lazzarevich, at p. 50.)
The Supreme Court Reaffirmed the Right to Partition
Writing for the court, Chief Justice Gibson restated the rule California courts had applied for decades:
“It is well settled that in the absence of a waiver a joint tenant is entitled as a matter of right to have his interest severed from that of his cotenant.”
Lazzarevich v. Lazzarevich (1952) 39 Cal.2d 48, 50
Three parts of that sentence carry the rule:
- “Well settled.” The right to partition was not new in 1952. The court treated it as established law.
- “As a matter of right.” Partition is not a favor the court may grant or withhold. A co-owner who proves ownership is entitled to it.
- “In the absence of a waiver.” The only thing that defeats the right is the co-owner’s own agreement to give it up. A debt, a dispute, or the other owner’s objection is not enough.
Among the cases the court cited for the rule were De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, which held that a co-owner cannot delay partition to wait for a better market, and Priddel v. Shankie (1945) 69 Cal.App.2d 319, which held that the right to partition is absolute. (Lazzarevich, at p. 50.) Lazzarevich gave that line of Court of Appeal decisions the authority of the California Supreme Court.
Fairness Adjusts the Money, Not the Right
Catherine argued that because partition is an equitable proceeding, a court applying fairness could refuse it until John paid. She relied on Ventre v. Tiscornia (1913) 23 Cal.App. 598. The Supreme Court disagreed. Ventre held only that a co-owner who pays for necessary improvements must receive a fair allowance before partition is decreed; it did not hold that those payments bar the action. (Lazzarevich, at pp. 50–51.) Fairness affects how the money is divided. It does not decide whether partition happens. As we explain in fairness is not a defense to partition, the same is true today.
An Unpaid Judgment Cannot Defeat the Right
The court did not need to decide whether Catherine’s judgment was a lien on John’s share, because “the existence of the unpaid judgment cannot prevent partition” either way. (Lazzarevich, at p. 51.) If the judgment was not a lien, it was no different from any other outside claim and had nothing to do with the property. If it was a lien, Catherine’s interest could be protected when the court settled the parties’ rights in the property. (Lazzarevich, at p. 51.) The court reversed the judgment on the partition claim, and John’s partition went forward.
The Right to Partition Under Today’s Statutes
California rewrote its partition statutes in 1976, and the rule in Lazzarevich is now written into the code. Under Code of Civil Procedure section 872.710 (CCP 872.710), the court first determines whether the plaintiff has the right to partition. CCP 872.710(b) then provides that partition between co-owners “shall be as of right unless barred by a valid waiver.” That is the Lazzarevich rule, and it applies to tenants in common as well as joint tenants. Once the right is established, the court enters an interlocutory judgment of partition and the case moves toward a sale or division.
Because waiver is the only bar, the question in most cases is simple: did the co-owner sign an agreement giving up the right to partition? Courts find a valid waiver rarely, and even a right of first refusal usually adds a step rather than taking the right away, as in LEG Investments v. Boxler. Our guides explain the absolute right to partition in California and the narrow waiver of the right to partition.
Debts and liens are handled after the right is established. Under CCP 872.630’s rule on lien status and priority, the court determines the status and priority of all liens on the property. When the property is sold, CCP 873.820’s rule on applying sale proceeds pays the expenses of sale and the costs of partition, then liens in order of priority, and then divides the rest among the owners. A lien against one co-owner is paid from that co-owner’s share, as in Starcevic v. Pentech. Our post on whether a judgment lien attaches to co-owned property explains when a judgment becomes a lien. Claims tied to the property itself, such as overpaid mortgage payments, are handled through partition offsets, credits, and reimbursements.
What Lazzarevich v. Lazzarevich Means for Co-Owners
- You have a right to partition. A co-owner does not need the other owner’s permission or a reason to end the co-ownership.
- Only a valid waiver takes it away. An unpaid judgment, a loan, or an old grudge is not a waiver.
- Money disputes are settled from the sale. Valid liens are paid from the debtor’s share of the proceeds, and the rest goes to the owner. See how proceeds are divided after a partition sale.
- The court decides how, not whether. Once the right is shown, the property is sold or divided. Most homes end in a partition by sale.
Your Co-Owner Says You Must Pay First? You Still Have the Right to Partition
A co-owner who demands payment before agreeing to sell is often using the debt as leverage. Under Lazzarevich, that leverage does not take away your right to partition. The property can be sold, valid liens can be paid, and you can walk away with your share.
Talkov Law can help. With 12 full-time partition attorneys and experience in over 650 partition actions throughout California, our team handles every step of the process, from establishing your right to partition through the referee’s sale and the final distribution of proceeds. Call (877) PARTITION (727-8484) today or contact us online to get started.
