Pleading Requirements for Waiver of Partition

In California, a partition is an absolute right for co-owners, however, the right can be waived by properly pleading the right has been waived. This article explains what constitutes a valid waiver and how to properly plead it in court when seeking to enforce a partition waiver.

What is a Waiver of Partition?

In California, a “co-owner of property has an absolute right to a partition unless barred by a valid waiver.”^[1]Orien v. Lutz (2017) 16 Cal. App. 5th 957. The California partition statutes explain that “partition as to…the property shall be as of right unless barred by a valid waiver.”^[2]California Code of Civil Procedure § 872.710(b).

“’Waiver’ means the intentional relinquishment or abandonment of a known right. Waiver requires an existing right, the waiving party’s knowledge of that right, and the party’s actual intention to relinquish the right. Waiver always rests upon intent. The intention may be express, based on the waiving party’s words, or implied, based on conduct that is so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.”^[3]Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 475 (citations and quotations omitted).

Waiver of Right to Partition in California

Which Party Must Raise Waiver of Partition?

“Case law is clear that waiver is the intentional relinquishment of a known right after knowledge of the facts. The burden … is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and doubtful cases will be decided against a waiver.”^[4]Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31, as modified on denial of reh’g (Oct. 26, 1995) (quoting City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107–108).

An argument exists that the co-owner seeking to block a partition because the other co-owner(s) waived their right to pursue it has the burden to demonstrate clear and convincing evidence of a waiver. Generally, the party who asserts a waiver of partition will be required to prove the other co-owner(s) knew of their right to partition and intentionally relinquished that known right

Does Waiver Need to be Pleaded as an Affirmative Defense?

A California court has articulated that “[t]he facts showing the affirmative defense of waiver must be pleaded.”^[5]Aetna Casualty & Surety Co. v. Richmond (1977) 76 Cal.App.3d 645, 653. Indeed, in a case where: “The Board’s answer alleged merely: ‘Plaintiff’s claims are barred in whole or in part by the doctrine of waiver,…. [The] affirmative defense consist[s] of legal conclusions that could survive neither a demurrer nor a motion for judgment on the pleadings.”^[6]Westly v. California Public Employees’ Retirement System Bd. of Administration (2003) 105 Cal.App.4th 1095, 1118, as modified on denial of reh’g (Feb. 25, 2003).

To plead waiver of partition, a party would need to sufficiently plead the facts that establish a waiver including the manner of communication, i.e., in writing, orally, or implied by conduct. For example, a court found that a partition waiver was sufficiently pleaded by showing a “written agreement that provided that one party would not sell his one-half interest without giving the other coowner the right to purchase it at a price not in excess of the original purchase price.”^[7]American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014. While the books are filled with interesting partition cases, few cases involve sufficient facts to establish a waiver of partition.

Did I Accidentally Waive My Right to Partition?

Talkov Law’s Partition Attorneys Can Help

Whether you are seeking to enforce a waiver or challenge its validity, working closely with an experienced partition attorney can make all the difference when ending a co-ownership dispute. As California’s foremost experts in partition action, having Talkov Law’s partition attorneys by your side means legal strategies tailored to maximize your benefits. With twelve, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 600 partition actions throughout California. For a free consultation, call (844) 4-TALKOV (825568) or reach out online today.