One of the most common questions raised by co-owners of real property in California is how to force the sale of the property when the co-owners do not agree. California Code of Civil Procedure Section 872.210 allow a co-owner to sell co-owned property, even if the other co owner does not consent to the sale, using the legal process known as a partition action. The highly experienced attorneys at Talkov Law explain the only way to force the sale of co-owned property: a partition action.
How to force the sale of jointly owned property in California
When co-owners are truly at a standstill over what to do with a jointly owned property, the only court-ordered remedy to this issue in California is a partition lawsuit. Most partition actions are partitions by sale, wherein the court will force the sale of the property and divide the proceeds equitably among co-owners.
Once it has been established that a partition is the best course of action, forcing the sale of a house usually proceeds as follows:
- Obtain all relevant documents showing proof of ownership of the property
- Such documents may include (but are not limited to) the grant deed, trust deed, will, or any other instrument vesting title. Note that a partition attorney can obtain recorded deeds at no charge.
- Consult with an experienced partition attorney
- A knowledgeable partition attorney will be able to navigate the ins and outs of properly filing a partition action in California
- File a complaint in the county where the property is located through a petition for partition action
- A partition attorney can draft and file the complain, ensuring that anyone with an interest in the property (including mortgage or lienholders) is included in the petition
- A notice of pendency of action, known as a lis pendens, is then recorded with the county recorder’s office against the property
- A lis pendens notifies anyone interested in the property that there is a lawsuit in progress
- The lis pendens will be rescinded if/when the partition is accomplished or the complaint is dropped
- Have the partition case heard in court
- A judge will determine whether the request for partition is granted. An experienced partition attorney will ensure that the matter is promptly decided by the judge so that the partition is quickly ordered
- If the request is upheld, the judge will assign a partition referee to divide or sell the property equitably among the co-owners
- Other costs may be recovered in a partition action as well, including attorney’s fees, referee expenses, title report costs, and other disbursements or expenses as determined by the court
Does majority rule in forcing the sale of co-owned real estate?
One myth that frequently circulates is that only the majority owner of a property can force the sale of a single property with multiple owners. However, this is completely false. Any owner with a fractional interest in a property can force the sale of that property whether they own 99% or 1% of the property. Often, this claim that a majority is required is raised by the co-owner in possession who seeks to remain in possession without compensating the co-owners. The claim is wrong, but allows the co-owner in possession to delay the sale of the property by confusing the other co-owner(s).
In large part, the law allows this because it is extremely difficult, if not impossible, to successfully market a fractional interest in real property. Few, if any, buyers will want to purchase this partial interest in a property and become a co-owner with the remaining co-owners. Allowing a co-owner to force the sale of jointly owned property, no matter the interest that co-owner has in the property, ensures a higher level of fairness for all co-owners of real property.
Do I need consent to sell a house?
Having a co-owned property in which all co-owners are in unanimous agreement of what to do with the property is certainly the easiest situation. However, it is not uncommon for co-owners to disagree on whether to keep or sell a property. A common scenario is when one party wants to sell while the other wants to keep the property. So, does a co-owner who wants to sell a property need the consent of the other co-owner(s)? The short answer is no – California courts have established that consent by co-owners is not required to force the sale of a property because the right to partition is absolute.
Miller & Starr, the leading California real estate law treatise, explains that “each cotenant has an ‘absolute’ right to partition the common property.”Right of partition—In general, 4 Cal. Real Est. (4th ed.) § 11:14.
One California Court of Appeal opinion set forth that “if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right is absolute.”Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.
Yet another California Appellate Court explained that: “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the cotenants will be promoted by refusing the application or temporarily postponing action, . . .’”Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.
There are very few California cases in which the right to partition was waived. This is likely because very few people have any written agreement with their co-owners when they purchase a property together. Each of these rare cases denying partition falls far outside the general fact pattern of co-owned real estate and actually strengthens the argument that the right to partition is absolute in California.
How do I force the sale of inherited property?
It is not uncommon for property to be passed down from parents, family members, or friends via a will, trust, joint tenancy with right of survivorship, or transfer on death deed. No matter who currently lives at the inherited property, the absolute right to partition property in California remains and a beneficiary may force the sale of inherited property, which in turn would evict anyone living at the inherited property. An experienced partition attorney can assist you in forcing the sale of inherited property.
How long does it take to force the sale of property?
The amount of time it takes to execute a partition action from beginning to end depends on the complexity of the case. Fortunately, most partition cases don’t last long. The majority of cases last roughly 4 to 8 months, with almost all partition actions lasting less than 12 months. Very rare cases involving complex issues on expensive property and wealthy owners may last several years. An experienced partition attorney can help ensure your partition doesn’t last longer than necessary and you get the best result possible.
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!