What is a partition action in California?
A partition action is the only court ordered process in California to bring an end to real estate co-ownership disputes. Under California Code of Civil Procedure Section 872.210, a partition action is a legal process taken to divide a California real estate equitably among its co-owners. When there is disagreement where one or more co-owner of a property may want to sell the property, but another co-owner does not agree to sell, a partition action can help force the sale of the property fairly and equitably among the joint owners.
Everything You Need to Know About California Partition Actions
Real estate is and continues to be one of the most lucrative investments that people can make. The demand for real property, like a family home, parcel of land or townhouse, also makes it one of the most expensive assets that people ever purchase. Often times, individuals look to share the cost of purchasing real estate with other parties such as investors, family members or friends, each being considered a co-owner of the property. Additionally, when real estate is inherited, property is commonly transferred to multiple owners.
Different types of co-ownership can work successfully in many cases, but disagreement and disputes between co-owners are also not uncommon. What happens when joint owners disagree on the best use of the property? Or if one of the owners wants to sell, but the other one doesn’t want to? What should be done when one co-owner is in possession of the property while the other owners are paying the expenses or simply wish to sell? What if one co-owner is denying another co-owner entry to the property?
These disputes between co-owners of property can be resolved through a partition action in California. If you are looking to understand what partition is and how you can use it to end your co-ownership relationship, look no further because the experienced partition lawyers at Talkov Law in Los Angeles, Orange County, San Francisco, Riverside, San Diego, San Jose, Sacramento, Fresno, and Surrounding Areas in California have written the ultimate guide to partition actions in California.
When do I need a partition action?
In California, most people consider initiating a partition action when there is a disagreement between joint owners of a property or a co-owner is looking to end a co-ownership arrangement. These disagreements may involve one owner requesting to sell their interest in a property, but the other shared owners are unwilling to sell or can’t agree on a fair price. A conflict on diverging interest may also occur where joint owners disagree on the best use of the property. If you have co-ownership of a property and your desire to use or sell the property conflicts with the other party, you may be entitled to a partition action. A partition action is the only way to solve co-ownership disputes for good.
It is very easy for joint ownership of real estate cause issues when co-owners simply have conflicting interests. Thus, a partition action is a tool to help you end a troubling relationship. If you have tried to negotiate with your co-owners, but they still refuse to compromise with your interests, then you should seek a partition action. A partition action can be filed by any co-owner in property with joint ownership, no matter how large or small the interest of co-owner. Any property, including commercial property, residential property, vacant land, and even personal property that has multiple owners can be subject of a partition action.
Keep in mind that all of this information likely does not apply to property a married couple owns as joint tenants. Spouses looking for information about how to sell jointly owned property in a divorce should seek the advice of a California divorce attorney.
What happens in a partition action?
In a partition action, a co-owner of a property is taking legal action to fairly divide the property among all co-owners of the property. This type of lawsuit usually ends in one of two ways: either the court orders a forced sale of the jointly owned property and then the sale proceeds are divided equally among each owner, known as partition by sale, or the court divides the property into pieces and gives each owner an undivided interest in their own separate piece, known as partition in kind. In some rare instances, the court may also award ownership to one person and order them to buy out the others. If this is agreed between the parties, this manner of partition is known as partition by appraisal.
Additionally, even after a lawsuit is filed, the co-owners can agree to sell the property either to each other or to a third party without court intervention and reach a settlement. This settlement agreement should be drafted by the counsel to ensure it is legally binding.
The terms related to a partition action as well as the partition process can be complex and time consuming. Therefore, many people who are seeking a partition action or have been served with one will often retain a real estate partition action attorney to help them navigate the legal process.
What is the Partition of Real Property Act (formerly known as the Uniform Partition of Heirs Property Act) in California?
The Partition of Real Property Act in California is a newly-implemented law that expands upon the Uniform Partition of Heirs Property Act to give non-partitioning parties additional opportunities to buy out their co-owners. Essentially, the Partition of Real Property Act creates a right of first refusal by forcing a partition by appraisal. The Act seeks to “expand the scope of the Uniform Partition of Heirs Property Act to apply to any real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.” [1]CA LEGIS 82 (2022), 2022 Cal. Legis. Serv. Ch. 82 (A.B. 2245) This allows co-owners even more ways to buy out their co-owners and move on.
How to file a partition action?
In order to file a partition action, it is best practice to hire a partition attorney to help navigate you through the legal process of filing a partition action in California. When looking to hire a partition lawyer, it would be ideal to be prepared by having certain documents on hand. Documents relating to the ownership of the property such as the grant deed, trust deed, will and other agreement is necessary for the attorney to properly evaluate the case.
After seeking and hiring a partition attorney, the counsel then files a complaint via a petition for partition action in the county where the property is located. Once the complaint is filed, a notice of pendency of action (lis pendens) is recorded with the County Recorders Office. This notifies anyone interested in the property that a legal action is in process. The court only rescinds the notice once the partition is accomplished or the complaint is dropped. Eventually, the case will come before the court, at which time the judge will make a determination of the partition request. If the request is upheld, the court will appoint a partition referee to divide or sell the property.
What are the pros and cons of a partition action?
As there is with all decisions, there are upsides and downsides to a partition action. Partition action cans be a complicated process and there are many benefits and challenges to this legal process. Thus, it is very important to understand both the pros and cons of partition in order to help you determine if partition is the correct legal course of action to take in your real estate dispute.
PROS – Benefits of a partition action
- Best option when co-owners of a property cannot agree to terms
- Ensures an end to any real estate dispute where a party refuse to cooperate
- Possibility of recovering reimbursement for costs on payment of mortgage, taxes, insurance, repairs and renovations, as well as down payments on the co-owned property
- Potential recovery of attorney’s fees and costs
- Sale of the property for a higher value than if the property is sold by co-owners who disagree over the price, terms, or basic marketing tasks.
CONS – Challenges of a partition action
- Some partition cases may be time consuming
- Being forced to interact through the courts with your co-owner, but at least this will eventually end
- Risk of the property being sold to a third party, though this will result in the proceeds being split by the court among all the owners
Partition action forms
Each partition action presents unique challenges. However, all partition actions start with a complaint for partition, sometimes known as a petition to partition property, which is usually a partition by sale. We have provided online a free California partition complaint form as well as an answer to a partition action complaint form intended for use by lawyers with experience in real estate disputes. It is important to contact a real estate attorney to determine which forms would be appropriate, even if you decide to represent yourself.
How much does a partition action cost? What is the cost for partition attorney fees?
In California, the cost of partition action with attorneys fees can vary depending on the complexity of the litigation involved. Based on dozens of partition lawsuits managed by the real estate attorneys at Talkov Law, the average cost of a partition action is usually between $8,000 and $12,000, with most coming in around $10,000. Costs can be higher if a co-owner decides to fight the partition action or if the case becomes more complex. In most cases, the cost of the attorney will be considerably smaller than the amount paid to the Realtor or real estate broker to sell the property. In certain cases that meet our criteria, Talkov Law may be able to take the case on a minimal retainer with the remaining attorney’s fees to be paid from escrow when the property is sold or refinanced. Contact us for more information.
Can you recover your attorney’s fees in a partition action?
The good news is that attorney’s fees may be recoverable in a partition action. California Code of Civil Procedure 874.040 states that “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable,” meaning the court can force the other party to pay for some or all of the fees associated with bringing or defending against the partition action.
In a case where you have a lack of cooperation from a co-owner, attorney’s fees can also be recovered in a partition for a non-cooperative co-owner. We have recovered attorney’s fees against uncooperative co-owners through court judgments. Ultimately, it is imperative to have a skilled partition attorney in California to evaluate your situation and advise you on a plan of action to ensure you get the best outcome possible in your situation for the least amount of expenses.
Can you recover mortgage payments and improvements in a partition action?
The great news about a partition action is that parties can recover all of the mortgage payments, taxes, insurance, repairs, improvements and other expenditures made in excess of their ownership interest. The seminal case of Wallace v. Daley (1990) 220 Cal.App. 3d 1028 , 1036 explained as follows: “Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each co-tenant’s interest. Credits include expenditures in excess of the co-tenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.” It is important to organize all documents showing these offsets available in a partition action to develop an appropriate strategy when consulting with a partition lawyer in California.
How to win a partition action?
In a partition action, there is a lot at stake as real estate is often so expensive and is always unique. What it means to win a partition action might be different for each person. For some, they seek to force their sibling out of their family estate and obtain sole title. For others, they simply want to be paid fairly for their co-ownership interest in a property. Therefore, it is important to know what your goal is prior to initiating a partition lawsuit. Whether it may be seeking to divide the land or receiving proceeds from the sale of the property, ensuring that you know what you want will give you a better chance at winning.
Additionally, hiring a skilled and experienced partition attorney will influence the outcome of a partition action in your favor. A partition lawyer who has experience in real estate litigation will be extremely helpful in ensuring that your interests are protected and you achieve the desired outcome. A partition action lawyer will help litigate for you in court as well as helping you reach a settlement outside of the court. Therefore, making sure you have a highly knowledgeable partition attorney on your side will be critical in the outcome of your case.
How long does it take to win a partition action?
The length of time it takes to resolve a partition action depends on the circumstances and the complexity of each case. The length of time it takes to win a partition action is usually between three to nine months, depending on the level of complexity, whether court involvement is required, or otherwise. Of course, there are outliers. But, the chances are, it will be over in a reasonable period of time. The time needed to reach a resolution also depends on the efficiency and effectiveness of legal counsel. An experienced partition real estate lawyer can possibly help you settle your case sooner.
Can a partition action be stopped? How do you stop a partition action?
Generally, the right to a partition action is absolute meaning that the right to partition a property is achievable by any co-owner, no matter how small or large their interest in the property may be. Once filed with the courts, a partition action cannot be “stopped” by a party who does not wish to sell the property unless the parties can resolve the dispute by settling. However, there are techniques to bring a stop to the action through an appropriate resolution that will obtain the consent of the other co-owners.
Absent an agreement or defense, the court will typically force the sale of jointly-owned property or force the sale of inherited property, then divide the proceeds between the co-owners. Even if one of the co-owners currently lives in the property, the partition action will typically force the sale of the property and can even force a co-owner to vacate if they do not cooperate in the sale. So, in short, it is typically very uncommon for a partition action to be stopped, but partition actions can be settled to reach an optimal outcome.
Affirmative defenses to a partition action
Generally, any co-owner has the right to file a partition action under the California Law. However, the most common exceptions to this rule are if:
- You waived the right to partition, which would generally occur by contract or otherwise in writing; or
- The property is community property (property bought while in a marriage). This division would be considered a family law matter and it would be best to seek out a property division attorney.
There are sometimes other defenses available to help you fight against a partition action. As explained by our article on affirmative defenses to a partition action in California, defendants can sometimes be successful at challenging a plaintiff’s standing, or raising offsets against the co-owner, particularly if the potentially offsets exceed the plaintiff’s equity in the property. To learn more about each affirmative defense to a partition action, it would be wise to consult counsel who can examine what defenses may be available to you.
Will the property be sold for fair market value in a partition action?
Many co-owners question whether they will get the full value of their fractional interest in the property if it sold through the partition process. Rest assured that a court ordered sale will protect everyone’s property interest. Our office works with partition referees who will hire a Realtor to market the property on the Multiple Listing Service, ensuring that the property is fully marketed on Zillow, Redfin, Trulia, and Realtor.com, among other sites. For commercial properties, a real estate broker will market the property on LoopNet and elsewhere.
The partition referee will stay in regular communication with the co-owners throughout the process. The partition referee will generally ask the parties if they have any disagreement with or proposed feedback on the proposed list price and on offers before recommending an offer for court approval. In fact, even after the referee accepts the offer, if the parties disagree, a hearing will be set where any person can submit a bid higher than the referee’s proposed buyer. If there is no disagreement, the referee can submit a stipulated sale order to the court to obtain approval in a matter of days. Usually, this does not slow down the sale process as the buyers are already handling other matters with escrow, such as loan approval.
In fact, Talkov Law is managed by an attorney who is also a broker and Realtor, which will give you an extra level of assurance that ordinary marketing efforts are indeed undertaken to maximize the value of your property interest. In our experience, properties are often sold for more than they would have if the property was listed in an ordinary sale, let alone by co-owners whose disagreements may delay and hinder the sales process if there were not a partition referee. In case you’re curious, the cost of the referee, who is usually a third-party real estate lawyer, is often a tiny fraction of the amount paid to the Realtor.
Do I need a partition lawyer?
Technically, you do not need a partition attorney to represent you if you own the property in your individual name, as opposed to holding the interest in the property within a corporation or limited liability company (LLC). However, it is not advisable for you to go into a partition lawsuit without legal representation. Partition law can be extremely complex, particularly to those without experience in the law. Indeed, defendants have been known to slow down self represented plaintiffs to delay the legal proceedings. To ensure that a partition action proceeds smoothly given the unique facts in every case, co-owners should seek the advice of an experienced partition attorney. It is crucial to work with an experienced partition attorney to help you end a soured real estate co-ownership relationship. Hiring a real estate partition lawyer will ensure your rights and interests are protected.
How to find the right partition attorney?
It is important to find the right attorney to represent you in a partition action. Indeed, co-owners in a partition action almost universally want the same thing: The best result in the least amount of time with the lowest attorney’s fees. To achieve these goals, look for the following signals that you’ve found the right partition attorney:
- Experience in partition actions will save you money and headaches by solving the dispute faster. Our dedicated partition attorneys have nearly two decades of experience in partition actions, allowing us to resolve your dispute quickly.
- Experience in real estate litigation will ensure that your attorney can solve all of the real estate related issues that arise in a partition sale including quiet title issues, escrow problems, subpoenas to banks, real estate accounting for damage calculations, and more.
- Reasonable fees are critical to your success. There are attorneys whose cases drag on for years and generate fees that benefit only the attorney. Our reviews make clear that we know how to resolve these disputes promptly.
- Success in settlement and negotiation. Many attorneys boast of their trial experience, even though about 98% of partitions are settled before a trial. This saves clients considerable amounts in attorney’s fees and ensures a resolution that is agreeable to them. Look for an attorney who can calculate the probable financial outcomes of the case to aid in a reasonable settlement.
- A winning strategy to end the dispute and win your partition action. During your consultation, be sure to ask the attorney how they plan to litigate the case. If their strategy is to file the complaint and just see what happens, run- don’t walk! Our attorneys implement an appropriate plan to solve the disputes in the case and determine the appropriate values for any offsets. This is why most of our partitions are over in a matter of a few months, not years.
- Satisfied client reviews reflecting a track record of success. With dozens upon dozens of satisfied client reviews on Google and elsewhere, all related to partition actions, our client-focused firm will hope to add you to our lengthy list of clients who found the right attorney.
Talkov Law is handling over 150 partition actions throughout California. This is because co-owners continue to put their trust in Talkov Law’s experienced and effective partition attorneys. Our dedicated partition attorneys are available to assist you by phone or online to end your co-ownership dispute for good.
Hire an experienced partition attorney at Talkov Law in Los Angeles, Orange County, San Francisco, Riverside, San Diego, San Jose, Sacramento, Fresno, and Surrounding Areas in California
Inaction becomes a problem and will not solve your co-ownership dispute. Filing a partition action will allow you to put co-ownership drama behind you once and for all. The sooner you start the partition process, the sooner it will be over. Don’t take a chance trying to handle this on your own. Here at Talkov Law, our knowledgeable partition real estate attorneys are veterans in partition action matters, having had handled countless cases in Los Angeles, Orange County, San Francisco, Riverside, San Diego, San Jose, Sacramento, Fresno, and Surrounding Areas in California. Our partition action attorneys regularly represent co-owners in partition actions to ensure their rights and interests are protected.
Contact an Experienced Partition Attorney in California
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our knowledgeable partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15-minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568), email us at info(at)talkovlaw.com, or fill out a contact form online. Contact Talkov Law today to find out how you can pay nothing today and have your legal fees paid from the proceeds of sale of your property!
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References
| ↑1 | CA LEGIS 82 (2022), 2022 Cal. Legis. Serv. Ch. 82 (A.B. 2245) |
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