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Is a Majority Vote Needed to File a Partition Action?

No. A common misconception is that a majority of the ownership interests are needed for a court to compel the sale of a jointly-owned property in a partition. This belief is entirely incorrect. Any owner, regardless of their ownership percentage, can initiate the sale of the property, whether they hold 99% or merely 1% of it. In California, the right to partition is absolute, meaning any co-owner can file irrespective of their ownership share.

Partition is an Absolute Right

In California, “a cotenant is entitled to partition as a matter of absolute right; that he need not assign any reason for his demand; that it is sufficient if he demands a severance; and that when grounds for a sale are duly established it may be demanded as of right.”[1]De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 123-124. Furthermore, “[a] cotenant need not assign any reason for his or her demand to partition; the only indispensable requirement to the award of partition is that a clear title be shown.”[2]De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 124.

Most Partitions are Filed by Co-Owners With Less than a Majority Interest

In fact, most partition actions are filed by owners holding a 50% interest against their co-owner also holding a 50% interest. Perhaps they were romantic interests at one time, or perhaps they each inherited a 50% interest after the passing of a family member. Regardless of the reason, they would only hold a 50% interest. Under the theory that only a “majority” owner can file a partition action, all of these partitions would fail since neither co-owner had a majority interest. However, these partitions are generally summarily granted because there is no rule that only an owner or owners holding a majority interest can file a partition action.

The Type of Co-Ownership Does Not Impact the Right of Partition

The right to a partition does depend on whether the owner is a joint tenant or tenant in common, even where courts refer to only one of these two types of co-ownership. One court explained that “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.”[3]Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.

The Partition of Real Property Act Does Not Prevent a Partition

The Partition of Real Property Act is a new bill that went into effect on January 1, 2023, which replaces the Uniform Partition of Heirs Property Act. The the Partition of Real Property Act articulates that when “any cotenant requested partition by sale, the court shall, after the determination of value under Section 874.316, send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.”[4]Code of Civil Procedure 874.317 This law further allows any co-owner to file a partition action, even if they have less than a majority of the ownership interests.

Absolute Right to Partition Exceptions

If you are ready to initiate a partition action against a co-owner, be informed of the two exceptions below before taking legal action.

Community Property

In California, “an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under” the partition statutes.[5]California Code of Civil Procedure Section 872.210(b) Accordingly, such property must be handled in family court.

Waiver of Right to Partition

Your “right of partition may be waived by contract, either express or implied.”[6]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. “Because the otherwise absolute right to partition may be waived by contract, the wise drafter of an agreement among co-owners of property will include language making clear no such waiver is intended. To do otherwise risks a later judicial finding that the parties have impliedly waived their right to partition by virtue of other contractual provisions.”[7]Orien v. Lutz (2017)16 Cal.App. 5th 957, 962–63.

Why is there no majority rule?

The often-quoted principle is that: “Partition is a remedy much favored by the law. The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land. An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.” LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.

Indeed, California courts have expressly stated that: “The policy behind a partition action is to permanently end all disputes about property and to remove all obstructions to its free enjoyment.” LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 497.

The only legal requirement as to title is that: “A co-owner of real or personal property may bring an action for partition. (Code Civ. Proc., § 872.210.)” Cummings v. Dessel (2017) 13 Cal.App.5th 589, 596 (quoting LEG Investments v. Boxler (2010) 183 Cal.App. 4th 484, 493).

Talkov Law’s Partition Attorneys Can Help

Uncooperative co-owners have a host of myths they promote in the hopes that it prevents their co-owners from filing a partition action. The truth is that they know that the plaintiff will prevail if the partition action is filed.

If you want to end your co-ownership relationship, but your co-owner has nothing but excuses, a partition action is your only option. With seven, full-time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 300 partition actions throughout California. If you are ready to discuss your absolute right to a partition, contact Talkov Law, California’s premier partition action law firm. For a free consultation, call (844) 4-TALKOV (825568) or reach out online today.

References

References
1 De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 123-124.
2 De Roulet v. Mitchel (1945) 70 Cal.App.2d 120, 124.
3 Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.
4 Code of Civil Procedure 874.317
5 California Code of Civil Procedure Section 872.210(b)
6 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.
7 Orien v. Lutz (2017)16 Cal.App. 5th 957, 962–63.
About Scott Talkov

Scott Talkov is a partition lawyer in California. He founded Talkov Law Corp. after more than one decade of experience with one of the region's oldest law firms, where he served as one of the firm's partners. He has been featured on ABC 7, CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterprise, and in Los Angeles Lawyer Magazine. Scott has been named a Super Lawyers Rising Star for 9 consecutive years. He can be reached about new matters at info@talkovlaw.com or (844) 4-TALKOV (825568). He can also be contacted directly at scott@talkovlaw.com.

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