Some co-owners in California wonder if there are any limitations on the time to file a partition action. For example, suppose a co-owner moved out of a property 20 years ago and never paid the taxes. Does that mean that they are no longer a co-owner? As explained below, co-owners do not lose their status as co-owners by the passage of time.
Right to Partition is Absolute in California
In a partition action, it has become common knowledge that a partition is absolute. Miller & Starr, the leading treatise on California real estate law, has a heading entitled: “Absolute right to partition” and that “each cotenant has an ‘absolute’ right to partition the common property.” Right of partition—In general, 4 Cal. Real Est. § 11:14 (4th ed.). One court explained 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.
Statute of Limitations in a Partition Action (California)
A statute of limitations is a defined time limit in which a lawsuit can be filed. Because the time limit varies depending on the type of case being filed, we sometimes receive questions about the statute of limitations for a partition action. The law is that: “Because of this absolute right, ‘[t]he statute of limitations never bars relief between tenants in common in an action of partition.'” Kaut v. Kelsey (Cal. Ct. App., Feb. 7, 2014, No. A136094) 2014 WL 495497, at *4 (quoting Adams v. Hopkins (1904) 144 Cal. 19, 27). In other words, there is no statute of limitations in a partition action because the right to partition is absolute. A co-owner may bring an action for partition at any point within the co-ownership, no matter how long this person has been a co-owner.
Offsets for Mortgage, Taxes, and Insurance
Some co-owners will try to argue that the out-of-possession co-owner’s equity in the property should be diminished by their failure to pay the mortgage, taxes, repairs, expenses, insurance and other holding costs, known in the law of partition actions as partition offsets. Unfortunately for co-owners in possession, the co-owner out of possession can charge the co-owner in possession with the rental value of to defeat claims of paying for monthly expenses. See Hunter v. Schultz (1966) 240 Cal.App. 2d 24, 30–31. Usually, the cost of the mortgage, taxes, and insurance is very close to the rental value of a property, meaning this is usually not much of a hurdle for co-owners out of possession when filing a partition action.
Does Leaving the Property Give the Co-Owner in Possession Greater Ownership? Adverse Possession in Co-Ownership
Adverse possession has a hurdle when used against a co-owner simply for being absent since “exclusive occupancy by a cotenant is deemed permissive; it does not become adverse until the tenant out of possession has had either actual or constructive notice that the possession of the cotenant is hostile to him.” West v. Evans (1946) 29 Cal. 2d 414, 418
“Thus, to find ouster between cotenants, ‘there must be something more than mere occupancy of the property by one and forebearance from occupancy by another. ‘Notice is required because … the general principle that the possession of one cotenant is the possession of all gives each tenant the right to assume that the possession of any other cotenant is not adverse.'” Evelyn Alicia Lewis, Struggling with Quicksand : The Ins and Outs of Contenant Possession Value Liability and A Call for Default Rule Reform, 1994 Wis. L. Rev. 331, 353 (1994). The article quotes a … Continue reading More information on the concept of adverse possession can be found below:
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 experienced 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) or fill out a contact form online.
|↑1||West v. Evans (1946) 29 Cal. 2d 414, 418|
|↑2||Evelyn Alicia Lewis, Struggling with Quicksand : The Ins and Outs of Contenant Possession Value Liability and A Call for Default Rule Reform, 1994 Wis. L. Rev. 331, 353 (1994). The article quotes a secondary source as finding that: “If this were not so, the tenant in possession could be obtaining a title in severalty through the operation of the Statute of Limitations, while his cotenants had no reason for suspecting that their rights were either denied or imperiled.”|