A real estate broker gets no commission on a partition sale the court never confirmed and that never closed. In Sullivan v. Dorsa (2005) 128 Cal.App.4th 947, the Court of Appeal reversed a $194,765.47 commission awarded on a failed sale of family land, holding that “such an award is precluded by provisions of the Probate Code expressly made applicable to partition actions.” (Sullivan, at p. 950.)
The same case settled a second point that matters to any co-owner trying to finish a sale: once the partition referee has made a sale and asked the court to confirm it, the owners cannot block it by agreeing on new terms.
Why Sullivan v. Dorsa Matters
- No confirmed sale, no commission. Code of Civil Procedure section 873.745 (CCP 873.745) brings the probate rules on commissions into partition sales, including Probate Code section 10160, which bars a commission on a sale that is not confirmed and completed. (Sullivan, at pp. 956–958.)
- Owners cannot veto a sale already reported. Code of Civil Procedure section 873.600 (CCP 873.600) lets all parties agree on sale terms before the referee contracts to sell, not after. (Sullivan, at pp. 961–962.)
- The referee still gets paid. A referee who expected a commission instead of a fee can seek reasonable compensation under Code of Civil Procedure section 873.010 (CCP 873.010). (Sullivan, at pp. 963, 967.)
The Facts: A Family Ranch on Highway 101
The property was about 16 acres on Highway 101 in Morgan Hill in Santa Clara County, known as the Cochran Road Ranch. Members of the Sullivan and Dorsa/Benassi families bought it around 1967, and their descendants and family trusts held it in undivided shares. In 1999, some owners agreed to sell for $10 per square foot, but others refused, believing the land could bring more. In March 2000, several owners filed a partition action asking for a sale. (Sullivan, at pp. 950–951.)
The owners stipulated to an interlocutory judgment ordering a sale. The court appointed as referee a senior vice president of the brokerage Grubb & Ellis, who offered to waive his referee’s fee if his firm earned a 4 percent commission. With court approval, he hired Grubb as the broker. In September 2002, he signed a contract to sell to a developer for $6.75 per square foot, about $4.87 million, with a closing that could stretch roughly 15 months after confirmation. (Sullivan, at pp. 951–953.)
Several owners objected, relying on a written stipulation signed by all owners that no offer below $10 per square foot would be accepted without their written agreement. The judge said he would confirm the sale but for that stipulation, believing CCP 873.600 left him no choice, and denied confirmation. A second judge then awarded Grubb a commission of $194,765.47, charged it to the owners as a cost of partition, and imposed liens on the property to secure it. The owners appealed. (Sullivan, at pp. 953–955.)
How the Court of Appeal Decided the Case
The Probate Code’s Commission Rule Applies to Partition Sales
CCP 873.745 provides:
“The amount of agents’ commissions on the sale, if any, shall be fixed by the court and divided or limited in the manner provided for private sales of real property in decedents’ estates.”
CCP 873.745
The court considered whether this wording imports only the probate rules on how much a commission is, not whether one is owed, and rejected that reading. When the Legislature rewrote the partition statutes in 1976, the California Law Revision Commission said courts should “allow, fix, limit, and divide” commissions as in probate sales, and its comment pointed to the probate rule that no liability arises unless a sale is actually made and confirmed. Probate Code section 10160 carries that rule today. (Sullivan, at pp. 956–958.)
Grubb also argued that a broker can collect when the seller’s own conduct blocks a sale. The court held that general rule cannot override a statute, and that the owners were not estopped, meaning barred by their own conduct, from relying on the statute. Awarding the commission would have been a windfall, because the developer’s many contingencies meant the deal might never have closed anyway. (Sullivan, at pp. 959, 962–963.)
No Veto Over a Sale Already Made
The court also held the first judge misread CCP 873.600. That statute requires the court to order a sale on terms all parties agree to in writing, but it speaks to the time before the referee makes a sale:
“But section 873.600 cannot reasonably be understood to grant the owners a peremptory veto over a sale that has already been made and is now brought before the court for confirmation.”
Sullivan v. Dorsa (2005) 128 Cal.App.4th 947, 962
Letting owners impose new terms at that stage “would license them to trifle with the court,” waste everyone’s time, and make buyers and brokers less willing to take part in partition sales. The owners’ unanimous views can still be weighed at the confirmation hearing, but they are not binding. (Sullivan, at p. 962.)
The Result
The court reversed the commission and sent the case back so the referee could seek reasonable pay for his own services and expenses under CCP 873.010. It affirmed the fees awarded to the referee’s attorneys. (Sullivan, at p. 967.)
What Sullivan Means for California Co-Owners
- Set the sale terms early. Agreed terms belong in the interlocutory judgment or the order to the referee, before a buyer signs. Our page on CCP 873.600’s rule on agreed sale terms explains how.
- The court controls the commission. Under CCP 873.745, the court fixes the commission, and no commission is owed on a sale that is never confirmed and closed.
- Price disputes go to the confirmation hearing. The court reviews the sale under Code of Civil Procedure section 873.730 (CCP 873.730), where the court can weigh the owners’ views on price.
- Choosing a broker matters. See our guides to whether a partition referee is necessary and co-listing to settle a co-ownership dispute.
Need Help Getting a Partition Sale Confirmed?
A partition action ends with a confirmed sale and a court order dividing the money. Sullivan shows why the terms, the broker’s pay, and the timing of objections all need attention from the start.
Talkov Law can help. With 12 full-time partition attorneys and experience in over 650 partition actions throughout California, our team handles every step, from the complaint through the partition sale and the final distribution of proceeds. Call (877) PARTITION (727-8484) today or contact us online to get started.
