How Does Partition in Kind Work in California Law?
A partition action in California is the only court-ordered process 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 by sale, partition by appraisal, and partition in kind. A partition in kind is a court ordered physical division of real property such that each co-owner receives a portion of land, “quality and quantity relatively considered, according to their interests in the property.” 48 Cal. Jur. 3d Partition § 76
The law explained that: “The referee appointed by the court to make a division of the property shall divide the property and allot the several portions to the parties, quality and quantity relatively considered, according to their interests in the property as determined in the interlocutory judgment.” California Code of Civil Procedure 873.210
When a Physical Partition is Appropriate
“Partition in kind is favored in law and in the absence of proof to the contrary the presumption in favor of in kind division will prevail.” Butte Creek Island Ranch v. Crim, 136 Cal. App. 3d 360, 365, 186 Cal. Rptr. 252, 254 (Cal. App. 1982). In other words, a partition in kind is the default manner of partition.
However, just because a partition in kind is the preferred method of partition in California doesn’t mean that it is the most common manner of partition. In fact, a partition in kind is extremely rare. Physical division of property is usually only used with vacant and/or undeveloped land, like agricultural land, because a home is not able to be physically divided by a partition in kind. Even if there is not a home on the property, factors including structures on the property, easements, fertile land, and oil reserves affect the equitable division of the property. Most partition actions will usually be resolved by a partition by sale in California.
Partition In-Kind Lot Splits Under SB 9
One theoretical partition in-kind that exists allows a property to be split into multiple parcels under SB 9. The truth is that SB 9 is the result of great negotiation whereby it was weakened to reach a compromise. The result is that SB 9 is rarely used because it is expensive, time consuming, and involves a patchwork of city laws whereby the lack of uniformity increases the cost of compliance by those who seek to utilize this law. The same would be true for a partition referee of co-owners who try to use this law to solve a co-ownership dispute.
Partition In-Kind ADU Sales Under AB 1033
While historically, partition in-kind meant a physical division that would be expensive and time-consuming, a new law in California allows ADUs (Accessory Dwelling Units) to be sold in a partition actions via AB 1033. This means that some cases involving a single-family residence may be eligible for division between the main house an an ADU, which may allow the co-owner in possession to stay in the property. Note that this new law is a small step in this direction as cities must agree that their ADUs can be sold separately from the main residence.
Partition In-Kind Attorneys in California
Partition-in-kind can be among the most complex manner of partition. Accordingly, it is important to hire an attorney with extensive experience in partition actions to understand the nature of the remedy and to advocate for an appropriate physical division of the property.
Talkov Law's Partition Attorneys Can Help
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. With six, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled 250 partition actions throughout California. Every case has resulted in a sale to either a third party or one of the co-owners. Not a single court has denied our clients the right to partition or declared our client to be a non-owner. Plus, for qualified cases, there is no fee until we settle or win your case!