Co-owner often seek to recover their unequal payments relating to the repairs and improvements to the co-owned property in a partition action. While the law sometimes conflates repairs and improvements, the law favors improvements, but may not always allow ordinary repairs to be recovered in a partition action.
The Law on Recovery of Repairs and Improvements
Code of Civil Procedure section 872.140 allows the court to “order allowance, accounting, contribution, or other compensatory adjustment among the parties in accordance with the principles of equity.” The Law Revision Commission Comment to this section specifies that this is intended to allow courts to make adjustments among the owners for “such items as common improvements, unaccounted rents and profits, and other matters for which contribution may be required.”
Citing California Code of Civil Procedure § 872.140,Wallace v. Daley (1990) 220 Cal.App. 3d 1028, 1035–36 explained that: “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.
While the law speaks of repairs and improvements as though they are one, the law treats one more favorably than the other.
Improvements are Generally Recoverable
Wallace v. Daley (1990) 220 Cal.App. 3d 1028, 1035–36, made clear that “Credits include expenditures in excess of the co-tenant’s fractional share for…improvements that enhance the value of the property.”
Over a century ago, a court explained that, “where it is shown that one cotenant in common has, in good faith, with or without the consent of his cotenant, expended money in making permanent improvements which were necessary to the preservation of the common property, partition should not be decreed without first counting the cost of such improvements, and making a suitable allowance for the same.” Ventre v. Tiscornia (1913) 23 Cal.App. 598, 605.
Some co-owners allege that they did not consent to the improvement. Citing Ventre, a court rejected this argument as to improvements that enhanced the value as follows: “Even though one cotenant does not consent to the making of an improvement, since an action for partition is essentially equitable in its nature, a court of equity is required to take into account the improvements which another cotenant, at his own cost in good faith, placed on the property which enhanced its value and to award such cost to him.” Mercola v. Chester (1950) 97 Cal.App.2d 140, 143.
Accordingly, where the evidence “shows without conflict that the improvements to the common property were necessary to its preservation, and enhanced its rental value, then the plaintiff should have been put to his election, either to contribute equally to the undisputed cost of the improvements, or else relinquish all claim to a share of the increased rentals resulting therefrom.”Ventre v. Tiscornia (1913) 23 Cal.App. 598, 606. This differing remedy impacts how partition litigants should proceed if the improvements are substantial and impacted the rental value.
Ordinary Repairs are Generally Not Recoverable
In contrast, where it appears that the expenditures were for the ordinary type of repairs and improvements and the property was occupied solely by the persons who expended the money, there is no error in refusing an allowance therefor.
Notably, the case of Gerontopoulos v. Gerontopoulos, (1937) 20 Cal.App.2d 261, it was found that a court is not required in a partition action to compensate for “the ordinary type of repairs and improvements” during the sole tenancy of one owner.
A related issue is that sweat equity, i.e., the value of time or services provided by co-owners, is not subject to contribution claims in a partition action. Goodenow v. Ewe (1860) 16 Cal. 461; Combs v. Ritter (1950) 100 Cal.App.2d 315.
Method of Reimbursement in a Partition Action
When a property has been sold through the partition process and the court finds that one party shall be reimbursed from the sale proceeds, the method for reimbursement is that the party is to be paid his or her reimbursement amount before the remaining money is divided in proportion to the ownership interests. Ventre v. Tiscornia, (1913) 23 Cal.App.598.
As stated by the Court in Southern Adjustment Bureau v. Nelson, (1964) 230 Cal.App.2d 539, 541: “When a cotenant makes advances from his own pocket to preserve the common estate, his investment in the property increases by the entire amount advanced. Upon sale of the estate, he is entitled to be reimbursed his entire advancement before the balance is equally divided.”
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!