What is a Partition by Sale?
A partition action is the only court-ordered process in California to bring an end to co-ownership disputes by dividing real estate equitably among co-owners. California law allows for three manners of partition: partition in kind, partition by appraisal, and partition by sale. California partition statutes allow for all three methods, but partition by sale is by far the most common manner of partition. A partition by sale allows the court to force a sale of a jointly owned property and then distribute the proceeds of sale equitably among the co-owners.
Single Family Homes Are Routinely Ordered Sold in a Partition by Sale
While the law makes the process sound difficult, the elements are met in nearly every partition case, notably when it involves a single family residence. The law is that: “In order to compel a sale rather than a physical division, it must be shown that either: (1) a division into subparcels of equal value cannot be made, or (2) a division of the land would substantially diminish the value of each party’s interest, such that the portion received by each cotenant would be of substantially less value than the cash received on a sale.” Right of partition—Partition by a sale of the property, 4 Cal. Real Est. (4th ed.) § 11:17
In other words, a partition by sale is preferred when a partition in kind is either impossible or would greatly reduce the value of the property. In California, most partition actions occur with a single family home that is indivisible by a partition in kind, making a partition by sale the preferred manner of partition. Generally, the portion of the land with the home will be worth more than any land that could be divided where the home is not located. Accordingly, single family homes are almost universally ordered to be sold in a partition by sale.
How Does Partition by Sale Work in California Law?
When at least one party decides to force the sale of jointly owned property, they will file a petition for a partition action in the county in which the property is located, preferably with the guidance from a partition attorney. A lis pendens (notice of pendency of action) is then filed with the County Recorders Office, notifying anyone interested that there is a pending lawsuit related to the property. The case will then be heard before the court. Then, depending on the exact facts of the case, the judge will then determine whether a partition in kind or a partition by sale is appropriate.California Code of Civil Procedure 872.820
A partition by sale will be the preferred manner of partition in almost all situations in which a home holds the majority of the value in the real property. A partition referee will then be appointed by the court to market and sell the property. The referee is in charge of ensuring that the sale of the property is carried out with the best interests of all parties. Once the property is sold, the partition action continues to the second and final phase where the proceeds are distributed. Generally, those proceeds are divided based on the ownership interests. However, parties can raise the issue of partition offsets to obtain more than their fractional share.
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!
|↑1||Right of partition—Partition by a sale of the property, 4 Cal. Real Est. (4th ed.) § 11:17|
|↑2||California Code of Civil Procedure 872.820|