Do I Have to Sue my Family Member to Obtain my Share of the Inherited Property?

It is common for family dynamics to be strained after inheriting real estate because many co-owners are unable to agree on how to manage the property. A co-owner may want to move into the property despite only inheriting 50% and the other co-owners, each holding 25% may want to sell the property and take the money to buy a house in a cheaper state. For those who inherited a minority share, you can still file a partition action because being a majority owner of a property is not a prerequisite to forcing the sale of the jointly owned property.

Is a Partition Action Really a Lawsuit?

To refer to a partition as a lawsuit is a misnomer in 90% of cases. Partitions are almost always granted. In fact, no court has ever issued a judgment denying our clients the right to partition.

Why it is considered a lawsuit, as opposed to a form submitted to a department is not entirely clear. Unfortunately, there is no office that would be a good fit to handle cases like this. It is more akin to an administrative hearing with perfunctory forms that are routinely granted. While partitions are governed by ordinary rules of civil procedure like CCP § 872.030, even the legislature recognized that these lawsuits are routinely granted, thereby allowing expedited procedures.

It is a common misconception that the individual initiating a lawsuit is automatically perceived as the antagonist. Often, the person starting legal proceedings is in a tough spot, facing situations where getting justice seems impossible without the court’s intervention.

In cases like property disputes, where family members inheriting real property argue over who owns what and who can live there, the person starting the legal fight often faces the difficulty of fighting for what is fair and letting their family member bully them out of their inheritance. A partition action seeks to serve justice and return control to someone who inherited it in the first place.

Can a Partition Action Resolve Your Co-Ownership Dispute?

If co-owners cannot agree on the use or disposition of a property, any co-owner can seek a legal remedy through the courts. California Code of Civil Procedure 872.210 provides that any co-owner of real property can file a partition action.

In California, “each co-tenant has an ‘absolute’ right to partition the common property.”[1]Right of partition—In general, 4 Cal. Real Est. (4th ed.) §11:14. A partition action will definitively end co-ownership disputes between co-owners who cannot decide what to do with a shared property.

Is it Normal to Feel Conflicted When Partition is Against a Family Member?

It is common to feel conflicted or guilty about taking legal action against a family member. Throughout the partition, know that the attorneys at Talkov Law provide support and guidance every step of the way. You can trust our seasoned experts to help you make rational decisions that benefit your interest through the roller coaster of emotions that come with partitioning a property shared with a family member. The best way to solve family disputes is to get it over quickly. That is why we are constantly perfecting our craft of ending partition actions as promptly as possible.

Can a Neutral Party Help?

When family members inherited property but disagree on the disposition of who should live there or if the property should be rented or sold, filing a partition action allows for co-owners to protect their interest despite their co-ownership dispute. The most efficient way to protect a piece of property subject to partition is to have a referee, who is a neutral party, appointed in the partition action. Under Code of Civil Procedure section 873.010(a), “[t]he court shall appoint a referee to divide or sell the property as ordered by the court.” Indeed, there is no other alternative if your co-owner simply won’t sell.

The Importance of Fairness

When co-owners cannot agree on how to manage their co-owned property, filing a partition will allow the court to equitably divide the interests of all the co-owners even if one or more co-owners does not agree to the sale or division. 

A partition action is particularly appropriate for family members who would be inconvenienced by the joint possession of land or cannot agree on how to manage a property. As explained by a California court: “Partition is a remedy much favored by the law. The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land. An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.”[2]LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493. Your entitlement to a fair share of the inheritance is paramount and a partition action may be the solution to further disagreements about an interest in property that rightfully belongs to you.

Is There a Better Option Than Filing a Partition?

In a dream world, your family member would simply cooperate with a sale or fair buyout of your interest. Unfortunately, if that were an option, you would not looking for alternative solutions here. When your family member chooses themselves over your fair share of your property, you can either sit with the injustice or file a partition action to advocate for yourself.

Talkov Law’s Partition Attorneys Can Help

Navigating the way after the passing of a loved one or receiving a gift during life isn’t easy. Unfortunately, inheriting real property from a deceased loved one can complicate the grieving process even further. The partition attorneys at Talkov Law strive to provide equitable and cost-effective representation in partitions by understanding the unique dynamics of each case, providing seasoned expertise in the practice of partitions, and prioritizing the interests and rights of the clients above all. With seven, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 300 partition actions throughout California. For a free consultation, call (844) 4-TALKOV (825568) or reach out online today.

References

References
1 Right of partition—In general, 4 Cal. Real Est. (4th ed.) §11:14.
2 LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.
About Scott Talkov

Scott Talkov is a partition lawyer in California. He founded Talkov Law Corp. after more than one decade of experience at a California real estate litigation firm, where he served as one of the firm's partners. He has been featured on ABC 7, CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, the Press-Enterprise, and in Los Angeles Lawyer Magazine. Scott has been named a Super Lawyers Rising Star for 9 consecutive years. He can be reached about new matters at info@talkovlaw.com or (844) 4-TALKOV (825568). He can also be contacted directly at scott@talkovlaw.com.

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